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73 U. Colo. L. Rev. 1291 (2002)
The Is Tradition Activist - Common Law of the Family in the Liberal Constitutionalist World

handle is hein.journals/ucollr73 and id is 1321 raw text is: IS TRADITION ACTIVIST? THE COMMON LAW OF THE FAMILY IN THE LIBERAL CONSTITUTIONALIST WORLD JAMES R. STONER, JR.* INTRODUCTION: IMAGINE A PRO-LIFE ROE Suppose during its next term, the U.S. Supreme Court holds that the right to life guaranteed in the Due Process Clauses of the Fifth and Fourteenth Amendments includes a right to birth, overriding any constitutional claim to an abortion right and trumping any statutory guarantee of access to abortion. In other words, suppose the Court declares unconstitutional any state or federal action to protect or support abortion. Leaving the current Court's composition aside for the purposes of this thought experiment, the legal grounds for such a decision may exist. First, the original intent of the Fourteenth Amendment would arguably support the claim, because many states had enacted statutes forbidding abortion in the early nineteenth century, and no evidence exists that the framers of that amendment intended to overturn such laws.1 The original intent of the Fifth Amendment is more problematic, because abortion in 1791 was a matter of common law. Although the issue is disputed, scholars have persuasively argued that the common law forbade most abortions and certainly afforded no positive right to abortion.2 Because early common law * Associate Professor of Political Science, Louisiana State University. Ph.D., Harvard University, 1987; M.A., Harvard University, 1980; A.B., Middlebury College, 1977. 1. Joseph Dellapenna, The History of Abortion: Technology, Morality, and Law, 40 U. PITT. L. REv. 359 (1979), at 389-390. 2. See Joseph Dellapenna, supra note 1, at 366-389; JOHN KEOWN, ABORTION, DOCTORS, AND THE LAW: SOME ASPECTS OF THE LEGAL REGULATION OF ABORTION IN ENGLAND FROM 1803 TO 1982 3-25 (Charles Webster & Charles Rosenberg eds., 1988).

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