Pacific Legal Foundation recently petitioned the Supreme Court the case of New Orleans social worker Ursula Newell-Davis, who argues that Louisiana’s certificate-of-need laws violate the right to earn a living.
Writing for USA Today, former Pacific Legal Foundation attorney Anastasia Boden, who is still working with PLF on this case, explains the situation:
A social worker in New Orleans for nearly two decades, Newell-Davis has been locked in a multiyear battle with Louisiana to open a care service for special needs children. She has seen firsthand that when parents don’t have access to care, they’re forced to leave their children unsupervised.
Determined to help not just these kids but also the parents she has seen desperately in need of a break, Newell-Davis set out to get a respite care license, which would permit her to offer short-term relief to caregivers.
It’s hard to imagine how Ursula’s business could be embraced with anything less than open arms, but the state requires new businesses to prove that they serve a community need before a license is granted. Each year the state rejects over 70% of applicants, keeping care from families who need it.
Unfortunately, the government did not see a need for Ursula’s business, and she was denied a license.
The State of Louisiana may not see a need, but many parents did. As Anastasia writes:
Several mothers testified to a horrifying lack of care in the state. One shared that left without access to reliable care, she lost her job, then her home, and eventually considered the “unimaginable” choice of giving up her child for adoption.
Ursula fought the state’s decision in the lower courts but was unsuccessful. But the fight isn’t over yet.
The Supreme Court has the opportunity to protect each individual’s right to earn a living, without the government picking winners and losers, if they decide to hear Ursula’s case.
A win for Ursula at the Supreme Court would reverse a 150-year-old precedent that established a very narrow view of the Fourteenth Amendment that neglected to properly secure the right to earn a living.
As Anastasia explains:
The 14th Amendment was intended to transform our system of government. Even after their defeat in the Civil War, Southern states had continued to subjugate free Blacks by restricting their ability to find work, to make contracts, to own property and to speak freely.
Congress set out to change that by amending our Constitution. The 14th Amendment not only affirmed birthright citizenship and guaranteed equality before the law, it also prohibited states from abridging citizens’ privileges or immunities, a colloquial term for fundamental rights.
The right to earn a living is among Americans’ most important civil rights. But in an 1873 opinion known as the Slaughter-House Cases, the Supreme Court took a narrow view of that sweeping amendment. Five Justices ruled that the privileges or immunities clause protected a narrow class of rights, such as the right to be protected by the government on the high seas.
As Justice Stephen Field wrote in dissent, Slaughter-House rendered the privileges or immunities clause “a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.”