This understanding provided the foundation for the court’s development of constitutional privacy to include a range of personal matters, including family living arrangements, parental rights, marriage, and abortion. But it remained controversial, not only because of the intense division of views over abortion, but also because it allowed for broader judicial authority in interpreting the Constitution.
The ‘Treacherous Field’ of Constitutional Privacy
First, a quick explanation of Dobbs and its rejection of a constitutional privacy right to abortion. It’s a story that began in the 1890s and continued to 1937, a period during which the Supreme Court entered what Dobbs and prior court opinions described as the “treacherous field” of substantive due process.
For roughly four decades at the outset of the 20th century—the so-called Lochner Era, named for a representative case of…
