Why Pro-Abortion Justices Forswore Lochner

Question: Why in the key abortion and right to privacy rulings does the majority find it necessary to defend themselves against the objection that the court is engaging in the substantive due process of Lochner v. NY (1905)?

Here are some examples of when that happens:

• Griswold v. Connecticut (1965) (not an abortion case, but the first right to privacy majority opinion:
  “Overtones of some arguments suggest that Lochner v. New York should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish, Olsen v. Nebraska, Lincoln Union v. Northwestern Co., Williamson v. Lee Optical Co., Giboney v. Empire Storage Co. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.”

• Roe v. Wade (1973):
  “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, ‘[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’”

• Planned Parenthood v. Casey (1993):
  “the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today.

  The first example is that line of cases identified with Lochner v. New York, which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes's view, the theory of laissez-faire. The Lochner decisions were exemplified by Adkins v. Children's Hospital of District of Columbia, in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish, signaled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench: ‘The older world of laissez faire was recognized everywhere outside the Court to be dead.’ The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law…
  
  …West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court's response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.

  Because the cases before us present no such occasion it could be seen as no such response. Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Answer: The pro-abortion and right to privacy justices forswore Lochner because apparent agreement with Oliver Wendell Holmes’ dissent in Lochner was a key marker of prestige in the American legal establishment.

It did not matter to them whether Lochner is precisely what they were replaying in those cases, substituting sexual privacy rights for economic decision-making rights. What mattered was appearance: the robes, the special legal terminology like “penumbras,” the smart lawyers playing out the logic of various made-up tests. All of that was important to make the American people think these cases were just business as usual for these professional judges, rather than the usurpation of the Constitution that they were. They denied precisely what they were becoming: a super-legislature.

And it worked with the American people. Conservative dissenters brought up that the liberal justices doth protested too much- that they really were Lochnerizing- but that did not irritate or get under the liberal justices’ skin.

It most certainly does not get under anyone’s skin today. The pro-abortion jurists of today have no real attachment to the old Oliver Wendell Holmes views of judicial restraint, they just know that Lochner was taboo. What is more important to them is to defend the substantive due process right to abortion. That is the real sacred cow, not avoiding Lochner and fulfilling some sort of judicial duty. Because for them judicial duty is just a mask- again, an appearance.