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30 Notre Dame J.L. Ethics & Pub. Pol'y 273 (2016)
Roe v. Wade & the Legal Implications of State Constitutional Personhood Amendments

handle is hein.journals/ndlep30 and id is 289 raw text is: ROE V. WADE & THE LEGAL IMPLICATIONS OF STATE CONSTITUTIONAL PERSONHOOD AMENDMENTS CLARKE D. FORSYTHE* & KEITH ARAGO** No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' I. INTRODUCTION In the 1770s, American state constitutions became a dramatically new and important means of defining and limiting governmental pow- ers and preserving individual liberty.2 They granted governmental pow- ers for the legislative, executive, and judicial branches, and they limited those powers. They had national and international influence.3 Their influence seemingly declined after the ratification of the Fourteenth Amendment and the impact of the U.S. Supreme Court's incorporation doctrine, however, as the Court applied many of the provisions of the federal Bills of Rights to the states. People looked to the U.S. Constitu- tion and the U.S. Supreme Court, rather than state constitutions, as more important in protecting liberty. But state constitutions as sources of expanding individual liberty have been the subject of increased judi- cial and academic consideration since the 1980s.4 * B.A., Allegheny College (1980); J.D., Valparaiso University (1983); M.A. Bioethics, Trinity International University (2006); Acting President & Senior Counsel, Americans United for Life; author, ABUSE OF DISCRETION: THE INSIDE STORY OF Roe v. Wade (2013). We are grateful to Michael Taylor for opening his research files at the National Committee for a Human Life Amendment (NCHLA) and to Will Brewer for his research assistance. We are also grateful to Walter Weber, Greg Roden, Ovide Lamontagne, and William Saunders for comments on an earlier draft, though we hasten to add that they are not responsible for any errors that remain. The views expressed are mine and not necessarily those of Americans United for Life. ** B.A., Franciscan University of Steubenville (2008); J.D., University of Notre Dame Law School (2011). 1. U.S. CONsT. amend. XIV, § 1. 2. See generally GORDON S. Woon, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969); see also President George Washington, Thanksgiving Proclamation (Oct. 3, 1789), http://www.heritage.org/initiatives/first-principles/primary-sources/ washingtons-thanksgiving-proclamation (commenting on the state and federal constitutions). 3. See generally Robert F. Williams, Experience Must Be Our Only Guide: The State Con- stitutional Experience of the Framers of the Federal Constitution, 15 HASTINGS CONSr. L.Q. 403 (1988). 4. See, e.g., Jeffrey S. Sutton, Courts as Change Agents: Do We Want More-or Less?, 127 HARV. L. REv. 1419 (2014) (reviewing EMILY ZACKIN, LOOKING FOR RiGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA'S POSITIVE RIGHTs (2013)); Steven G. Calabresi, Sarah E. Agudo & Kathryn L. Dore, State Bills of Rights in 1787 and 273

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