Conservatives use the plan and Roe v Wade’s precedent for judicial activism to revive the Lochner-esque right to contract.

This analysis began from the conservative charge that the decision in Roe and its use of substantive due process reflected the reckless judicial activism of the anticanonical, prototypically unrestrained Lochner decision. While the majority opinions in each case shared a framework of individual liberties competing with state interests, they are ultimately dissimilar. The cases had different approaches to the relation between liberty and society due to their respective reliances on the distinct doctrines of police powers and fundamental rights. However, this difference was not fatal for the conservative criticism; in fact, the more aggressive standard of judicial enforcement of unenumerated rights in Roe would necessarily legitimize the level of activism in Lochner, which reviewed legislation with greater deference. The implication from Roe's degree of judicial activism to Lochner's does not necessarily go both ways, as the weaker Lochner standard would not compel an anti-Roe originalist to endorse or condemn both decisions. While any jurist could, of course, choose just the right level of activism to get to Lochner without Roe, a more principled, substantive theory of interpretation would provide a better justification for such a stance. New originalists could be posed to do just that. New originalists look to the semantic public meaning of the text of a law or provision, in contrast to old originalists, who focus on the intent of the framers in order to produce a judiciary that is systematically biased towards restraint. Understanding the Due Process Clause as containing a freedom to contract but not a right of abortion, as derived from a right to privacy, could produce a result completely opposed to current jurisprudence. A controversial staple of modern constitutional law could vanish, and the Court could revive one of its most reviled decisions more than a century after it was issued.