Worse than Lochner?

“Worse than Lochner?” in C.M. Flood, K. Roach & L. Sossin, eds., Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005) 75-100.

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Chaoulli struck down Quebec’s ban on private health care insurance, a core design feature of Canada’s most cherished social program, Medicare, and could fundamentally reshape health care delivery to tens of millions. Approaching Chaoulli through the lens of Lochner yields a number of critical insights. If we want to understand Chaoulli better, it would pay dividends to grapple in more detail with the Lochner metaphor. And since Lochner has multiple and divergent meanings—standing for judicial activism and economic libertarianism—the real issue is not why Lochner matters, but how it matters. Some of Lochner ’s meanings are more apposite than others in shedding light on Chaoulli. But taken together, they should give us considerable pause for concern. To equate a case with Lochner is about the worst insult a constitutional lawyer can make. As we shall see, Chaoulli may be even worse than that thoroughly discredited judgment.