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


We would likely be better informed about the health consequences of abortion. Three recent medical studies, of abortion prohibitions in Ireland, Chile, and Mexico, suggest that countries with abortion prohibitions have lower maternal-mortality rates and better women’s-health trends and better demographic trends than countries with abortion-on-demand.

LOPEZ: What if viability had been defined differently?

FORSYTHE: The definition of fetal viability is not as significant as allowing the people in the states the freedom (and rightful constitutional authority) to adopt different gestational limits to abortion. (Viability is based on the survival rates of children at certain gestational weeks based on medical data — e.g., such-and-such a percentage of children born at 22 weeks survive). The more important question is “Why should viability be the national standard for all 50 states?” The Supreme Court has never justified its viability rule.

LOPEZ: How did the Supreme Court redefine health, and what have been the repercussions?

FORSYTHE: There are two significant ways. First, the Court defined the health exception after viability to be open-ended, meaning that the states must allow abortion for any reason. Second, based on the myth that “abortion is safer than childbirth,” “health” concerns have been a one-way ratchet in favor of the fastest abortion possible. In other words, the Court has invoked “health” concerns to strike down limits on abortion, believing that all “health” concerns weigh in favor of abortion, without investigating risks to women from abortion. The Court is dependent on cases appealed to it — it works only through litigation — and cannot investigate or regulate in the interests of public health, as state and local public-health officials normally can.

LOPEZ: David Brooks has written that “unless Roe v. Wade is overturned, politics will never get better.” But will it ever be?

FORSYTHE: I’m certain Roe will be overturned eventually, because its inherent defects will require correction. The Court has already retreated from Roe in three or four cases. But this will not happen by itself, because they are numerous billion-dollar organizations working overtime to prop up Roe. Overturning Roe will not result in making abortion illegal immediately. If Roe was overturned today, abortion would be legal tomorrow through the first trimester and probably up to viability in 40 to 45 states, because there are no enforceable abortion prohibitions on the books in those states. So abortion means returning the issue to the states (or to Congress), where public opinion would impact what comes out of the state legislatures.

LOPEZ: Why is retired Supreme Court justice Tom Clark important to understanding abortion law as we know it?

FORSYTHE: After retiring in 1967, he published a speech as a law-review article arguing for the repeal of abortion laws. That influenced Justices Douglas, Brennan, and Blackmun and a host of lower-federal-court judges. The irony is that he advocated that the legislatures do it, not the courts.

LOPEZ: How and why was Eisenstadt v. Baird a “rhetorical bridge”?

FORSYTHE: While Roe and Doe were under consideration in the fall of 1971, the same four-justice bloc of Douglas, Brennan, Stewart, and Marshall also decided Eisenstadt by a four-to-three margin, and struck down limits on the sale of contraceptives to minors. Justice Brennan wrote the opinion in Eisenstadt and purposely included a sentence about a right to “bear or beget children,” which he thought would be useful as “precedent” for the opinions then underway in Roe and Doe. He distributed that draft opinion in Eisenstadt on the same day that Roe and Doe were first argued, December 13, 1971.

LOPEZ: How was “born alive” misunderstood by the Supreme Court?

FORSYTHE: The born-alive rule was an evidentiary rule based in the English common law since 1601, which American courts adopted in the 19th century. In an era of primitive medicine, the common law adopted the rule to guard against uncertain medical evidence. The rule meant that no homicide charge could be imposed for the death of a newborn child unless the child was born alive and observed outside the womb prior to death. Thus, there could be no homicide charge in the case of a stillbirth, because the evidence was too uncertain to press a homicide charge, which was invariably a capital offense. The justices overlooked the evidentiary foundation for the “born alive rule” and took it to mean that the common law did not consider an unborn child to be human until it is born at term [40 weeks].

LOPEZ: Why hasn’t a human-life amendment succeeded?

FORSYTHE: The last vote for a human-life amendment failed in the U.S. Senate in June 1983. Its wording is ambiguous and complex, and many believe, wrongly, that it would prohibit abortion in all 50 states all at once. That misunderstanding makes it a tough sell.

LOPEZ: It’s crazy, isn’t it, that a medical procedure was declared a constitutional right, isn’t it? Is that a fair reading of what happened?

FORSYTHE: Abortion is the only medical procedure in America that is a constitutional right, which basically shields it from the normal public-health oversight that is applicable to doctors and other medical procedures.

LOPEZ: Why don’t we see it that way?

FORSYTHE: Because the medical procedure is bound up with the false image that the procedure solves the problem of an “unwanted” child simply, easily, and without risks.