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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