She Tried to Start a Business, but Was Told It Wasn’t Needed. Supreme Court Should Change That.

This year, the Supreme Court can undo that mistake, except this time the plaintiff is a woman named Ursula Newell‐​Davis, and the Louisiana monopoly in question involves much‐​needed care services for special needs kids.

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.

The results can be particularly tragic where the kids have disabilities or socio‐​emotional behavioral needs. Newell‐​Davis has seen that unsupervised kids could fail to complete basic tasks such as brushing their teeth or changing their clothes, which leads to being bullied at school for poor hygiene. She has also seen that kids who are eager for approval can fall into crime.

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. But in Louisiana, before you can even apply for a license you must first prove you are “needed.”

According to the state Department of Health, it doesn’t matter if Newell‐​Davis is qualified; they don’t see a need for her business. In recent years, they have denied more than 70% of applicants, effectively granting a monopoly to incumbents, who enjoy reduced competition. In 2019, they denied Newell‐​Davis.

Newell‐​Davis is now challenging that licensing regime. But if precedent reigns supreme, she will be fighting an uphill battle in the Supreme Court.

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 the 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.

Supreme Court took narrow view of the 14th Amendment

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, that reading rendered the clause “a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.”

While the court has clawed back protection for some civil rights via the due process clause, to this day, the right to earn a living enjoys almost no judicial protection.

If you waltz into court claiming a violation of your right to free speech, a judge will look closely at the law to make sure it’s a valid health or safety restriction. If you come into court arguing a law violates your right to earn a living, a judge will turn a blind eye to even unabashedly ridiculous and anticompetitive laws.

In recent years, a court even upheld Louisiana’s requirement that would‐​be florists pass a bouquet‐​making test before getting a florist’s license. The kicker? The panel who judged the flower arrangements were licensed florists − the applicant’s potential competitors.

When Newell‐​Davis sued to challenge Louisiana’s need requirement, the state came up with a stunning justification for its law: It said the fewer the licensees, the easier its job, and the easier its job, the better it is at protecting the public. But Newell‐​Davis unearthed evidence showing that depriving people of their choice of caregiver is no benefit.

Mothers testified that better child care options were needed

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.

The state’s own expert concluded that more than 80% of respite businesses in New Orleans are either limiting new clientele or can’t be reached at all. These mothers don’t want the business next door, even if they could reach one; they want Newell‐​Davis, who they know they can trust.

But thanks to The Slaughter‐​House Cases, none of that evidence matters. Instead, every court to hear Newell‐​Davis’ case has said that the state can keep her out of a job to make its own job easier.

Having lost in the trial court and court of appeals, Newell‐​Davis is now asking the Supreme Court to recognize the right to earn a living as a “privilege or immunity” protected by the 14th Amendment. She filed her petition with the court in June, and it remains to be seen whether they will accept her case.

It’s poetic that her case, like Slaughter‐​House, involves a Louisiana monopoly. The 14th Amendment was written for all of us, but it was undoubtedly written to allow a female of color to earn a living helping families in her own backyard, free of state favoritism.

While every court has so far let her down, Newell‐​Davis remains optimistic. She once remarked that “there could be thousands other respite businesses in Louisiana, but they’re not Ursula Newell‐​Davis.” Though there have been thousands of lawsuits before her, let’s hope her outcome will be different.