Lochner redeemed: family privacy after Troxel and Carhart

At least since its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court has differentiated its review of abortion laws from its scrutiny of other intrusions on family privacy. Whereas abortion restrictions are reviewed under the middling "undue burden" standard, incursions on other family-related liberties, including marriage, kinship, and child rearing are said to be subject to the strict scrutiny ordinarily employed in the defense of fundamental rights. This Article contends that the Court's most recent decisions in this context give reason to reconsider both sides of that equation. Stenberg v. Carhart, striking down Nebraska's ban on "partial-birth" abortions, suggests that the Court's scrutiny in the abortion context will be more aggressive and rigid than most had supposed. At the same time, its decision in Troxel v. Granville, limiting states' authority to order grandparent visitation over the objects of a parent, suggest that there is more fluidity in the Court's review of other family liberties than is conventionally assumed. Together the cases signal a convergence in both sorts of family-privacy controversies toward a common standard of "reasonableness." That standard bears, for many, an uncomfortable association with the much-maligned "natural law-due process formula" of the Lochner era, but Professor Meyer argues that it is precisely the right approach in the context of family privacy. Although more rigid doctrinal formulae are sometimes preferred on the ground that they constrain judicial judgment, here they are undesirable precisely because they obscure the value judgments that are inevitably at the core of every family-privacy decision.