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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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