LOPEZ: Why is it, do you think, that The Feminine Mystique never mentions abortion?
FORSYTHE: For the same reason that the National Organization for Women [NOW] didn’t go public in support of abortion until 1967 or later, and when it did, it split the organization. There was no public support for abortion on demand in 1963. Even today, a majority only support abortion in certain circumstances early in pregnancy.
LOPEZ: What was the jurisdictional issue in Roe, and how could the Court have limited its ruling to those grounds?
The justices, with Black and Harlan still on the Court, took the cases in April 1971 to decide whether doctors who might be charged with abortion under state law could take their cases into federal court. The justices could have limited the decision in Roe
to that question, decided that question, and looked for other cases with a full trial record on abortion and its medical implications. Or they could have struck down the Texas law (prohibiting abortion except to save the life of the mother) in Roe
and upheld the Georgia law (permitting abortion in certain circumstances and imposing health and safety regulations) in Doe
. Instead, the justices issued the most sweeping decision imaginable, which went way beyond public support.
LOPEZ: Why do you contend that what happened that day in 1973 was “not inevitable”?
FORSYTHE: The conventional history of Roe is that it was the “inevitable” outcome of prior Supreme Court decisions of the 1950s and 1960s. But the evidence indicates that it was more an accident of history: the cultural influences of the sexual revolution, the national political theme of the “population crisis” of the late 1960s, as well as the crisis within the Court caused by the twin vacancies in September 1971 when Black and Harlan retired. That empowered the temporary majority of four justices — Douglas, Brennan, Stewart, and Marshall — to push to eliminate the abortion laws.
LOPEZ: How and by whom was Blackmun lobbied? Why does it matter today?
FORSYTHE: Justice Blackmun was mostly a follower, not a leader, and was lobbied at key points by Justices Douglas and Brennan to expand the decision and expand the right to abortion and eliminate more abortion laws and regulations.
LOPEZ: How were the arguments embarrassing?
FORSYTHE: Since Roe and Doe were originally taken to decide the jurisdictional question, not the abortion issue, and there was no factual record on abortion or its implications, neither the attorneys nor the justices had any factual record on which to rely to ask or answer basic questions, like the number of abortions, the medical implications, the risks, the legal history, the purpose of abortion laws, the impact of the newer abortion laws enacted in 13 or 14 states beginning in 1967, the public-health record, etc. You can hear the original audio at www.oyez.org and read the corrected transcripts at www.aul.org.
LOPEZ: How did Roe and Doe make law schizophrenic?
FORSYTHE: Many states in 1972–73 treated the unborn child as a human being or person and protected it in property law, tort law, and criminal law. The Court in Roe and Doe addressed only abortion law and swept away the abortion laws without touching those other areas of law. And legal protection for the unborn child in the states in property, tort, and criminal law has grown since 1973, creating a situation where the unborn child is treated as a “zero” in the abortion context but protected as a person by the tort and criminal laws in 36 to 38 states.
LOPEZ: You quote Lawrence Friedman saying that Roe “swept away every abortion law in the country.” Did Roe do a harm to our democratic republic, federalism, and the judiciary, beyond the lives lost and harmed?
FORSYTHE: By taking the issue of abortion away from the American people, the justices wrote their own national abortion policy and have disconnected national policy from public opinion, and the gulf between the justices’ policy and national public opinion has created 40 years of political, social, and medical turmoil.
LOPEZ: And the issue of abortion itself: There is a harm that’s going to do to the conscience of a nation, isn’t there? How has that played out?
FORSYTHE: The impact on the conscience of the nation is demonstrated in numerous ways. But it may be expressed most vividly in two areas: in the mental trauma of women who have had abortions and expressed their profound regret, and in the divergence between the justices’ national abortion policy and the property, tort, and criminal laws in the states — laws that the public widely supports — to protect life.
LOPEZ: What kind of reaction are you getting to Abuse of Discretion?
FORSYTHE: Nearly all who have read it and given me their reaction have found it a great read, and a shocking story.
LOPEZ: What difference do you hope your book makes?
FORSYTHE: At least two generations of Americans have grown up since 1973, and they need a fuller account of the history of Roe and Doe, how they were created and what their impact has been. The justices’ papers released over the past ten to fifteen years tell a different history from the one most Americans have heard.
— Kathryn Jean Lopez is editor-at-large of National Review Online and a director of Catholic Voices USA.