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Privacy, Abortion, And Judicial Review: Haunted By The Ghost Of Lochner, Helen Garfield

Washington Law Review

This article poses the question whether Lochner can finally be laid to rest without repudiating all applications of substantive due process, particularly protection of privacy and autonomy. The answer to that question requires a closer look at Lochner itself, and then at Griswold, Roe, and a few of the cases in between. The answers suggested by Ely, Perry, Choper, and others will then be discussed. Finally, this article will examine the ideas and ideals of the man who first conceived the common law right of privacy, Justice Louis D. Brandeis.