Why won’t SCOTUS protect economic liberty?

October 11, 2023 | By BRITTANY HUNTER
Ursula Newell Davis

The Supreme Court declined to hear a case that could have affirmed everyone’s right to economic liberty—an unfortunate decision that highlights a problem much larger than one case.

New Orleans social worker Ursula Newell-Davis would like nothing more than to help families with special needs children. Raising an autistic son, along with 25 years of experience in social work, has given Ursula unique insight into the struggles of these families, especially those from low-income backgrounds who must work odd hours out of necessity. Some parents are forced to leave their special needs children home alone for several hours a day.

Ursula decided to start a business where she would help these families by teaching the children basic life skills like completing homework, preparing meals, and hygiene care. Giving the children something to do after school also kept them off the streets and out of trouble, which was important to Ursula. Years ago, her oldest son was shot and killed. His death kept her up at night thinking about the kids who shot her son, and what could have been done to prevent such a tragedy.

The only thing that stood in the way of Ursula’s new business was the state’s facility need review (FNR) law that forced Ursula to prove that her business met a community need before she could obtain a license. Even though local parents had vocalized their needs and support of Ursula, the review board ultimately determined that her services were not needed, and she was denied the right to start her business, and with it, her right to earn a living.

Ursula fought in the lower courts, but to no avail. Pacific Legal Foundation then filed a Writ of Certiorari, asking the Supreme Court to take her case this term. In September, that request was denied.

The ability to provide your own livelihood is a fundamental right. The Constitution is supposed to prevent the government from interfering with fundamental rights. Yet, the Court has a weak history of protecting economic freedom.

Why won’t SCOTUS protect economic freedom?

If the Fourteenth Amendment’s purpose were to come up as a question in a trivia game, the most obvious answer would be that it ensures equal treatment under the law. Without a doubt, the Equal Protection Clause is a foundational part of the Amendment’s text—but its scope extends beyond that right.

The Privileges or Immunities Clause in the Fourteenth Amendment states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Privileges or immunities refers to fundamental rights. Put simply, this clause protects an individual’s economic liberty—or at least it should.

But this protection was muddied shortly after it was written in the late 1860s.

As Anastasia Boden, a former PLF attorney who still represents Ursula Newell-Davis alongside PLF, writes:

There’s vast evidence that the Clause was intended to prohibit states from violating the Bill of Rights or infringing other natural rights, and to enshrine in the Constitution those rights guaranteed by the Civil Rights Act of 1866. Chief among those rights contemplated by the Civil Rights Act were economic rights, which would ensure freed blacks would be able to thrive in the aftermath of the Civil War.

But a Supreme Court decision in the Slaughter-House cases, which challenged a government monopoly over the New Orleans butcher industry, effectively gutted the Privileges or Immunities Clause, ruling it protected individuals in certain areas controlled by the federal government—like the high seas and federal elections—and didn’t protect fundamental rights, including economic liberty, against infringement by the states.

As Anastasia points out,

The decision discouraged federal courts from interfering with state laws that violated individual rights—especially economic liberty.

It encouraged states to prop up monopolies and licensing regimes that asserted centralized control over industries—expanding the role of the government in private spaces.

In Ursula’s case, it allows Louisiana to violate her right to earn a living.

The courts have been hesitant, or perhaps downright unwilling, to broach the topic today. Ursula’s case presented an ideal opportunity for the Court: The costs of restricting Ursula’s economic liberty are measurable and clear. She’s being prevented from serving families in her community. But the Court declined to revisit the Privileges or Immunities Clause.

Who pays the price?

The most tragic aspect of the Court’s refusal to revisit economic liberty is the people it impacts. In Ursula’s case, it is not just her family that suffers from the financial setbacks this certificate of need law has caused; it also harms the countless families that will not have access to the care they so desperately need.

Disheartening as this may be, PLF is committed to being relentless in its efforts to protect individual liberty across the country—so that people like Katie Chubb and Parker Noland can have their day in court.

Katie Chubb is fighting back against Georgia’s protectionist laws that have stopped her from opening the Augusta Birth Center (ABC), a nonprofit, freestanding birth center.

Driven partially by her own experience of having to drive nearly three hours to the nearest birth center to deliver her baby, Katie believes expectant mothers should have options for giving birth.

Georgia was especially in need of more choices.

As of 2020, Georgia’s infant mortality rate ranked 15th highest in the United States, with some rural locales ranking behind some Third World countries. Local nurses tell stories of a lack of beds and women giving birth in hospital hallways.

Like Ursula, Katie was stopped in her tracks by Georgia’s CON program, which required her to prove that new childbirth services were needed. Katie’s application was denied.

Entrepreneur Parker Noland wanted to start his own debris hauling business in Montana. Under the state’s motor carrier laws, would-be debris haulers must apply for CONs with the Public Service Commission, which decides if there is a “need” for an additional business.

Subsidiaries of two of the nation’s largest waste disposal firms in the United States, Republic Services and Waste Connections, protested Parker’s CON application for no discernable reason other than a self-serving desire to avoid competition.

These are just a few examples of clients who have been deprived of their economic liberty. While we fight these battles on the state level, SCOTUS support would have sent a clear message to all states that these unconstitutional restrictions should cease.

Economic liberty has a fundamental place in our Constitution. Until economic liberty is given as much protection as any other constitutional right, Americans won’t be truly free to pursue their happiness.