Jn an effort to discredit substantive due process, originalists often misinterpret the federal Du... more Jn an effort to discredit substantive due process, originalists often misinterpret the federal Due Process Clauses. Justice Clarence Thomas's Obergefell v. Hodges dissent illustrates this. In this dissent, Justice Thomas cites Blackstone's Commentaries to argue that Due Process "liberty" is merely freedom from physical restraint, what Blackstone describes as the power of "loco-motion. " This Article challenges Justice Thomas's narrow view of Due Process liberty from Obergefell v. Hodges on its own terms. It distills from the dissent and its sources five assumptions or premises supporting Justice Thomas's view, and it confronts each of these with contrary evidence from the historical record, especially the 1776 to 1789 American state "law of the land" clauses. Along the way, this Article establishes that Due Process "life, liberty, or property" is best understood as a single term of art describing all interests to be protected by the state under a Lockean social contract. The Article also illustrates the practical effect of this competing view by examining the pre-Fourteenth Amendment "law of the land" case law from North Carolina.
This Article focuses on adverse prenatal diagnoses, rather than other prenatal or preconception s... more This Article focuses on adverse prenatal diagnoses, rather than other prenatal or preconception scenarios, such as adverse preconception genetics screenings or counseling, failures to provide or recommend preconception genetics screenings or counseling, failures to diagnose or treat fetal conditions properly in utero, or ineffective sterilizations or abortions. While such scenarios are often discussed in connection with one another, each has distinct practical, medicolegal dynamics, and so this Article focuses on prenatal diagnoses specifically. 4. See, e.g., Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 407 (Iowa 2017) (accepting a wrongful birth claim and rejecting arguments about an increased risk of defensive medicine and more abortions); Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993) (noting arguments of counsel that recognition of wrongful birth suits will cause overutilization of medical tests, affecting the standard of care); Albala v. New York, 429 N.E.2d 786, 788 (N.Y. 1981) (discussing the risk of physicians avoiding treatments that may cause birth defects in future pregnancies); Becker v. Schwartz, 386 N.E.2d 807, 818-19 (N.Y. 1978) (Wachtler, J., dissenting in part) ("A doctor exposed to liability of this magnitude will undoubtedly, in marginal cases, be inclined to practice 'defensive medicine' by advising abortion rather than run the risk of having to pay for the lifetime care of the child if it is born with a handicap. Thus the majority's decision will involve human costs as well, in those cases where otherwise healthy children will be unnecessarily aborted as the only alternative to the threat of pecuniary liability."); Paola Frati et al.,
Jn an effort to discredit substantive due process, originalists often misinterpret the federal Du... more Jn an effort to discredit substantive due process, originalists often misinterpret the federal Due Process Clauses. Justice Clarence Thomas's Obergefell v. Hodges dissent illustrates this. In this dissent, Justice Thomas cites Blackstone's Commentaries to argue that Due Process "liberty" is merely freedom from physical restraint, what Blackstone describes as the power of "loco-motion. " This Article challenges Justice Thomas's narrow view of Due Process liberty from Obergefell v. Hodges on its own terms. It distills from the dissent and its sources five assumptions or premises supporting Justice Thomas's view, and it confronts each of these with contrary evidence from the historical record, especially the 1776 to 1789 American state "law of the land" clauses. Along the way, this Article establishes that Due Process "life, liberty, or property" is best understood as a single term of art describing all interests to be protected by the state under a Lockean social contract. The Article also illustrates the practical effect of this competing view by examining the pre-Fourteenth Amendment "law of the land" case law from North Carolina.
This Article focuses on adverse prenatal diagnoses, rather than other prenatal or preconception s... more This Article focuses on adverse prenatal diagnoses, rather than other prenatal or preconception scenarios, such as adverse preconception genetics screenings or counseling, failures to provide or recommend preconception genetics screenings or counseling, failures to diagnose or treat fetal conditions properly in utero, or ineffective sterilizations or abortions. While such scenarios are often discussed in connection with one another, each has distinct practical, medicolegal dynamics, and so this Article focuses on prenatal diagnoses specifically. 4. See, e.g., Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 407 (Iowa 2017) (accepting a wrongful birth claim and rejecting arguments about an increased risk of defensive medicine and more abortions); Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993) (noting arguments of counsel that recognition of wrongful birth suits will cause overutilization of medical tests, affecting the standard of care); Albala v. New York, 429 N.E.2d 786, 788 (N.Y. 1981) (discussing the risk of physicians avoiding treatments that may cause birth defects in future pregnancies); Becker v. Schwartz, 386 N.E.2d 807, 818-19 (N.Y. 1978) (Wachtler, J., dissenting in part) ("A doctor exposed to liability of this magnitude will undoubtedly, in marginal cases, be inclined to practice 'defensive medicine' by advising abortion rather than run the risk of having to pay for the lifetime care of the child if it is born with a handicap. Thus the majority's decision will involve human costs as well, in those cases where otherwise healthy children will be unnecessarily aborted as the only alternative to the threat of pecuniary liability."); Paola Frati et al.,
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