years after Roe
are just now learning the back history to the Supreme Court decision
that allowed abortion on demand to become a national policy. In his
insightful and well-researched new book, Abuse
of Discretion: The Inside Story of Roe v. Wade
Books, 2013), Clarke
D. Forsythe chronicles the complicated history and political details
that led to the most sweeping Supreme Court decision in our history.
up with Forsythe, senior
counsel at Americans United for Life
, to discuss the twenty years
of research that went into this important book.
"right to privacy" established in Griswold
v. Connecticut served
as a precursor for Roe
Was Griswold the
decision that ultimately paved the way for the justices’
endorsement of legal and unlimited abortion in the United States?
entirely by itself. The Justices pointed to a number of decisions
that they said created a right to privacy, including the 1972
decision in Eisenstadt
heard during the fifteen-week twin vacancies after the retirements of
Justices Black and Harlan in the fall of 1972which significantly
extended Griswold to strike down regulations on the sale of
contraceptives to single people. The justices largely abandoned the
right to privacy in 1992 in Planned
Parenthood v. Casey
and justified Roe
on the basis of the “reliance interests” of women in abortion as
a back-up to failed contraceptionthe new glue that holds together
the right to abortion.
non-legal scholars overlook the significance of Roe
v. Wade's companion
Why do you insist that Doe
main reasons: First, it is Roe
which gave us the national policy of abortion for any reason, at any
time of pregnancy. Roe
a right to abortion up to fetal viability; Doe gave us the “health”
exception (defined as “emotional well-being”) after fetal
viability, which is left to the discretion of the provider.
struck down the 1968 Georgia law as too strict, which allowed
abortion in certain circumstances, including the health and safety
regulations in the Georgia laws.
the cultural currents of the sixties and seventiesmore women in
the workforce, increased sexual license, concerns of overpopulation,
and so forthweren't the justices that decided Roe
confirming public opinion on the matter of abortion?
the Justices imposed a national policy that, when released, went way
beyond public support. And that has continued for forty years.
Today, only 7% to 9% of Americans support abortion for any reason, at
any time of pregnancy.
book posits that the justices originally agreed to hear Roe
v. Wade and
v. Bolton because
they believed they were only to be ruling on matters of jurisdiction
and whether the plaintiffs in these cases could even bring their case
to the federal level. Yet upon hearing the cases they soon realized
they had taken on a much bigger issue than originally anticipated. In
both hearing and deciding the cases, what factual evidence was
considered on record?
specifically, the Justices took the cases to decide the
jurisdictional issue, and then, after the abrupt retirements of
Justices Black and Harlan in September 1971, four justicesDouglas,
Brennan, Stewart and Marshalldecided to use the cases to eliminate
the abortion laws. There was no trial or evidentiary record in
but the flour pushed ahead nevertheless, violating a long-standing
rule that the Court will not decide constitutional issues without an
adequate factual record. The only “facts” that the justices had
were presented to them by interest groups, like Planned Parenthood,
in the Supreme Court.
You note that the United States
is an outlier when it comes to abortion rights. How extreme is the
United States juridical position compared to the rest of the world?
The U.S. is only of only four nations across the globe that
allows abortion for any reason after fetal viability: China, North
Korea, Canada, and the U.S.
Why did the justices adopt a
standard of "viability" (meaning the stage in development
when the child can survive outside the womb independent from the
mother) and how does the Court's definition of "health"
factor into this?
the first year of deliberations, the justices were only considering
creating a right to abortion up to twelve weeks (the first
trimester). Then after the second round of arguments in October
1972, the Justices began to negotiate behind the scenes as to the
scope of the “right” and Justices Powell and Marshall lobbied
Justice Blackmun to expand the right to viability, which they thought
at the time occurred around 28 weeks. They did so for purely
pragmatic reasons: to expand access to abortion. But then they
outlined the Doe
“health exception” after viability, which means that the states
must allow abortion even after viability, at the discretion of the
provider, for any reason related to the “emotional well-being” of
You observe that the idea that
"abortion is safer than childbirth" was an influential
factor in the justices deliberations on the matter. What medical or
scientific research is this assumption based on?
that notion drove the entire outcome in Roe
it was the key medical assumption in the cases. Since there was no
trial or evidentiary record in the lower courts in Roe
there was no factual evidence supporting that notion. That too was
urged on the Justices by the attorneys and interest groups in the
Supreme Court. The notion was based on maternal mortality numbers
from the 1950s in Soviet Bloc countries. Today the notion is based
on a mechanical comparison of the official published abortion
mortality rate and the maternal (childbirth) mortality rate. But
these rates are non-comparable because what goes into the numerators
and denominators of the two rates is radically different. It’s
apples and oranges.
So much of the language of
abortion rights is touted under the banner of women's health and
women's rights. Has legal abortion been a real service to women? And
are there long-term studies that evidence the effects abortion has on
these women in the long run?
chapter in Abuse
examines the short-term and long-terms risks and negative impact on
health and relationships. Abortion isn’t about women’s health;
it’s just population control. There has been a growing body of
international medical data on the long-term risks of abortion over
the past two decades. We now have more than 130 international,
peer-reviewed medical studies finding an increased risk of pre-term
birth (PTB) after abortion. And we have more than a hundred
international, peer-reviewed medical studies finding an increased
risk of mental trauma after abortion.
Abortion is often described as
the most polarizing political issue in the United States, yet you
cite polls showing broad agreement that abortion is the ending of a
human life and a general desire to limit abortion in most
circumstances. If that's the case, why can't we carve out a common
ground position in our public policy?
Supreme Court (and the lower federal courts) through Roe
control every aspect of abortion law and policy and practice, and
prevents the American people from “carving out” any “common
ground position.” As a practical matter, that is being done by the
states when they pass the twenty week (five month) limits, supported
by majority public opinion. But the abortion proponents file a case
in federal court to get them blocked. As long as Roe
remain the law, the public is prevented from agreeing on any “common
eventually overturned by the Supreme Court, as so many pro-life
advocates are hopeful for, where and when will abortion be legal? And
what will the task of the pro-life movement then be?
was overturned today, abortion would be legal in 40 to 45 states
tomorrow because there are no enforceable prohibitions on the books
in those states. Pro-life legislators are preparing for the “day
by working on abortion regulations and prohibitions right now.