How Roe Happened
The road to and away from our current abortion regime.


On Monday, January 22, 1973, the Supreme Court of the United States issued two abortion decisions that “took on a life of their own. The political, social, and medical turmoil caused by the decisions has lasted for forty years and shows no signs of abating,” Clarke Forsythe writes in his Abuse of Discretion: The Inside Story of Roe v. Wade. The book is an authoritative resource on the back story behind the decision — the uncertainties, the politics, the all-too-human influences that went into the Roe and Doe decisions issued that day. Forsythe talks with National Review Online’s Kathryn Jean Lopez about what happened and how these four decades of knowledge and grave experience can shape our future.

KATHRYN JEAN LOPEZ: Is abortion safer than childbirth? How important is this question to the Supreme Court’s Roe v. Wade decision?

CLARKE FORSYTHE: That question was the key medical assumption of Roe v. Wade. It was the central assumption on which the Court prohibited health and safety regulations in the first trimester and expanded the right up to viability. There were no reliable data to support the notion in 1972, and, since there were no trial or factual hearings in Roe and Doe, there was nothing to support it in the record. The notion today is based on the mechanical comparison of the published abortion mortality rate and the published maternal-mortality rate. But these rates are non-comparable because what goes into the numerator and denominator in each is radically different. And the notion is doubtful today at any stage of pregnancy because there are now four fundamental challenges to the mantra that “abortion is safer than childbirth”: numerous medical studies highlighting the dysfunctional abortion-reporting system here in the United States where all data reporting is voluntary, U.S. maternal-mortality data showing an increasing rate of maternal mortality from abortion after the first trimester, the growing body of international data on the long-term risks to women from abortion, and maternal-mortality data from other countries, with a centralized data-registry system, that show that the rate of maternal mortality from abortion is higher than from childbirth.

LOPEZ: How was Roe a procedural mistake?

FORSYTHE: The justices first took the two cases, Roe v. Wade and Doe v. Bolton, in April 1971 to decide a jurisdictional question, not the abortion question, but after Justices Black and Harlan abruptly retired in September 1971 due to ill health, a temporary majority of four justices — Douglas, Brennan, Stewart, and Marshall — decided to use the two cases to declare a right to abortion and sweep away the abortion laws. That’s how they decided the abortion cases without any factual record.

LOPEZ: “The outcome in Roe surprised even abortion activists.” Did you write the book in part because we’ve forgotten that? Just how radical Roe was, and is? 

FORSYTHE: Yes, in part. Because of Roe and Doe, the U.S. (along with China, North Korea, and Canada) is one of only four nations (of 195 around the globe) that allows abortion for any reason after fetal viability. I also wrote Abuse of Discretion because the papers of the justices released over the past ten to fifteen years give a completely new “history” of how Roe and Doe came to be.

LOPEZ: What difference do Justice Blackmun’s private papers make?

FORSYTHE: They are essential to the full story, because they tell how the opinions were written, including the adoption of the “viability rule,” but the papers of Justices Douglas, Brennan, and Powell are also important for understanding the “power play” and the role that each played in lobbying Justice Blackmun. Brennan’s papers suggest that his role was nearly equal to Blackmun’s. (Each justice controls when his papers are released and what remains in them.) 

LOPEZ: Why is the Doe part of January 22, 1973, important, and why do we seem to forget about it?

FORSYTHE: The Doe opinion defined the open-ended “health exception” that gives the U.S. abortion for any reason after fetal viability. Doe also swept away the newer abortion laws — enacted by 13 to 14 states between 1967 and 1970 — which allowed abortion for some reasons. Perhaps Doe is ignored because Roe was the lead case and declared the right to abortion, while Doe is viewed as just “mopping up” by eliminating the remaining regulations.

LOPEZ: What might we look like today had Roe and Doe never happened?

FORSYTHE: The simple answer is that abortion policy in the states would much better reflect public opinion, and by better reflecting public opinion, the abortion issue would be better settled and not as contentious. The annual Gallup poll since 1975 has consistently shown that the majority of Americans support abortion in “certain circumstances.” In addition, Roe and Doe created a public-health vacuum, which allows substandard conditions in clinics and includes a lack of reliable public-health data about abortion and its health impact.