Roe v. Wade

When directly comparing the two cases, it becomes clear that substantive due process actually undermined workers' rights in Lochner v. New York, (1905), but was used to elevate and enhance rights in Roe v. Wade (the "right to privacy" precedent was actually set in Griswold v. Connecticut,(1965), not Roe).

Lochner reduced individuals' legal rights by depriving them of protection from government regulation of the workplace, leaving them at the mercy of powerful employers. Instead of gaining rights, as suggested in the opinion of the Court, Lochnerensured the working class remained a source of cheap and exploitable labor for industry by stripping them of the ability to support themselves without working long hours.

Roe v. Wade, (1973) on the other hand, advanced the right to privacy established in Griswold v. Connecticut, (1965). While most right-to-life supporters would probably evaluate this question negatively because of the emotional tie to abortion, the fact is the use of substantive due process in Roe actually protects the individual from unwelcome outside intrusion in a variety of situations. Privacy rights have been used for more than upholding abortion laws: they've also resulted in couples having access to birth control and family planning information; have protected people from laws regulating private sexual practices between consenting adults; and help maintain the integrity of medical records and other personal information, among other things.

Because the doctrine of substantive due process involves implied liberty interests not explicitly written in a single constitutional amendment, it lends itself to interesting contortions that may be perceived as either protective or harmful, depending on individual beliefs and values.

Since the question requires expression of opinion, I believe the doctrine is better applied in instances that allow greater use of free will, as in Roe (or Griswold), than in instances that inhibit free will, as in Lochner.

Incidentally, the way this question is phrased is somewhat reminiscent of Republican push polls. Whomever posed it chose to compare what most contemporary people would consider an emotionally neutral case with one that's emotionally charged. Expect opinions to be skewed based on ideology: Pro-choice supporters may favor the use of substantive due process in Roe v. Wade, (1973); Right-to-Life supporters may favor the use of substantive due process in Lochner v. New York, (1905).

Nearly three years elapsed from 1970, when Roe v. Wadewas filed in the US District Court for the Northern District of Texas until the US Supreme Court released its decision on January 22, 1973.

Part of the reason for the delay was the Justices' dissatisfaction with both attorneys' arguments when the case was first heard on December 13, 1971, and the case was subsequently scheduled for reargument during the following Term, on October 11, 1972.

Case Citation:

Roe v. Wade, 410 US 113 (1973)

This controversial ruling struck down many of the legal restrictions that were (at that time) in place against abortion. It is hard to estimate the impact of the ruling itself, since it was tied in with a number of much broader movements: the sexual revolution, women's rights movement, feminism, and civil rights more generally. However, for a period of perhaps 100 years prior - beginning in the late 19th century and ending with RvW - abortion was a felony in most states in the US, punishable by fine or imprisonment. This meant that women who became pregnant were legally obligated to bring the child to term regardless of the conditions of their life or how they came to be pregnant. The only exceptions were for imminent risk to the woman's life. Abortions were still carried out despite the legal restrictions, but (because of the risks to those doing the abortions, who could also be jailed), abortions were often done secretively and without proper medical procedures. This carried an unfortunately high rate of medical problems, either from the treatment itself or from post-treatment infection, which could sometimes lead to permanent reproductive damage or even death.

Some have connected abortion with increases in sexual promiscuity, sexually transmitted diseases, and other social ills, though this is probably a function of the sexual revolution more generally, which legitimized non-marital sexuality and created an open environment for discussions and depictions of sexuality in media (such as advertising and entertainment). Frankly, the risk of pregnancy (despite what people may say) has never been much of a deterrent to sexual activity in people of any age. The debate over abortion has become a significant cultural phenomenon in its own right, with an impact on election campaigns and public policy nationwide, though it has generally focused on the question of rights (the rights of the mother against the rights of an unborn child) rather than on questions of sexuality.

The right to an abortion was seen as one of the lynch-pins of the women's rights movement not because abortion was needed as a form of contraception - there were many contraceptives available at the time, as there are today - but because abortion was seen as a necessary 'last-ditch' safeguard against a woman being forced to have a child against her will. Contraceptives might fail or be sabotaged, sexual intercourse might be forced, living conditions might make raising a child an untenable burden; all of these cases can result in a woman being reduced (to use the feminist's terminology) to a form of chattel slavery, in which she must dedicate her life to caring for a child she neither asked for nor wanted. The moral/ethical conflict, thus, lies between the inherent right any individual has to be free (which is well-established in moral and legal codes) and the right of an unborn individual to live (highly contentious uncharted territory, since the various religious and medical opinions can not agree at what point an unborn child becomes a living being). The most conservative opinions hold that a child becomes a living being at conception (which would make any abortion a form of murder); more common opinions believe fetuses become living beings when they begin to move (usually at the end of the first trimester, which is what current law and practice use); some religious beliefs go so far as to hold that a child is not a living being until it draws its first breath (which is the standard that most US courts use to distinguish between the crime of late-term abortion and the much more serious crime of infanticide, in cases where newborns are found dead).

Answer

Sandra Day O'Connor wasn't a member of the US Supreme Court when Roe v. Wade, (1973) was heard; President Reagan appointed her to the Court in 1981.

Any discussion of Roe v. Wade requires mentioning Justice Sandra Day O'Connor's plurality/majority opinion from Casey v. Planned Parenthood, 505 U.S. 833, 112 S.Ct. 2791 U.S.Pa., 1992. This may come as a surprise to most, but Roe v. Wade does not reflect the current state of the law regarding abortion. What someone else may tell you notwithstanding, Roe is little more than an easily remembered symbol. The US Supreme Court has decided many abortion cases since Roe, some of which significantly affected Roe. Of those cases, Casey had the greatest affect. Casey actually modified Roe in the following ways:

The idea that the right elucidated in Roe emanated from the Constitution was affirmed, but not enthusiastically. Instead, Justice O'Connor stated that the judicial doctrine of stare decisis required reaffirmation of Roe's essential holding; that a woman's right to choose an abortion before the fetus becomes viable overrides the state's opposing interest in protecting a potential life.

The bright line trimester approach of Roe was rejected due to the fact that the state of medical science is not static. [Casey reduced the legal age of viability from 24 to 22 weeks.] In its place, Justice O'Connor specified that if the state regulation did not impose an "undue burden" on a woman's right to choose an abortion, the law would not be struck down. In other words, before a state law regulating an abortion procedure would be struck down as unconstitutional, it would have to impose a substantial obstacle to the woman's effective right to elect the procedure.

Since Casey, the US Supreme Court weakened Roeeven further when it refused to find the 2003 ban on the so called "partial-birth abortion" unconstitutional. Gonzales v Carhart, 550 U.S. 124, 127 S.Ct 1610 U.S., 2007. Before Gonzales, it was generally accepted that any regulation that prohibits an abortion procedure after the fetus has become viable will be deemed unconstitutional unless it contains an exception to protect the life or the health of the mother. By refusing to find the 2003 ban on "partial-birth abortion" unconstitutional, the majority in Gonzales rejected the necessity of requiring any post viability prohibition of an abortion procedure contain an exception for the life or the health of the mother.