
Contents
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The Critics The Critics
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The Criticisms The Criticisms
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The New Deal Legacy and Judicial Restraint The New Deal Legacy and Judicial Restraint
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Lochner and Unenumerated Rights Lochner and Unenumerated Rights
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The Underdeveloped Protection of Women’s Equality The Underdeveloped Protection of Women’s Equality
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What Changed? What Changed?
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Judicial Restraint and Unilateral Disarmament Judicial Restraint and Unilateral Disarmament
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The Present and Future of Unenumerated Rights The Present and Future of Unenumerated Rights
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The Persistence of Unenumerated Rights The Persistence of Unenumerated Rights
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Unenumerated Rights after Dobbs Unenumerated Rights after Dobbs
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Abortion as an Issue of Women’s Equality Abortion as an Issue of Women’s Equality
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Cite
Abstract
This article establishes three explanations for the views of liberal critics of Roe. First, for decades after the New Deal confrontation between President Roosevelt and the Court, many liberals believed that the courts should hesitate to resolve controversial issues of national policy unless the ordinary political processes were dysfunctional (which, regarding abortion, they were not). Second, some liberals believed that the Court’s basic error in the Lochner era was that the Court recognized unenumerated constitutional rights. Some liberals said that Roe was wrong for the same reason. Third, and most important, a commitment to women’s equality became more central to liberal constitutionalism over the last decades of the twentieth century. The more that abortion came to be seen as an issue about women’s equality, the more the existing doctrinal categories—which had been developed in the context of race discrimination but which made Roe harder to defend—came under pressure.
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