Tort Bunnies: Substantive

March 26, 2012. Today, the Supreme Court begins hearing oral arguments over the constitutionality of the Affordable Care Act, also known as Obama-care. The case will probably revolve around the meaning of the Commerce Clause. But the argument that a lot of conservatives are making, that the government shouldn't force people to buy something they don't want to buy, sounds like the "liberty of contract" or economic due process advanced in Lochner v. New York. The Supreme Court rejected this idea in West Coast Hotel Co. v. Parrish, but the underlying idea, that due process could encompass more that just process, lived on. In particular, substantive due process guarantees the right "to be free from unwarranted governmental intrusion into matters . . . fundamentally affecting a person [such] as the decision whether to bear or beget a child," and by extension, the right to abortion. Planned Parenthood of Southeastern Pa. v. Casey (quoting Eisenstadt v. Baird).

Also, you totally can't do what Tort Bunny is doing.