In this article, the Privileges or Immunities Clause will be re-conceived in its original context, at the center of the Fourteenth Amendment. This re-conception includes the assumption that The Slaughter-House Cases" were decided incorrectly.'" The contention of the article is that abortion restrictions, as a specific originalist matter, can be considered economic legislation and that they also economically burden women, such that they unconstitutionally abridge two privileges or immunities, the Lochnerian liberties to contract and the engagement in any of the common occupations. Specifically, abortion restrictions violate "the prohibition on redistributive 'class' legislation ... that was deeply rooted in the original understanding of the Fourteenth Amendment." The Fourteenth Amendment was originally intended to forbid the states from playing a role in the economy. This principle was the hallmark of Lochner. Separately, Congress has developed a greater understanding of women's economic role and has recognized that a woman's maternal role constitutes a substantial economic burden. Abortion restrictions too constitute an economic burden, and Congress is permitted to alleviate this burden through Section Five legislation; similarly, the Court could invalidate abortion restrictions on this ground.
Steven Graines and Justin Wyatt,
The Abortion Right, Originalism, and the Fourteenth Amendment,
47 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol47/iss2/4