Politics & Policy

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.

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.

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?

FORSYTHE: 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 and Doe 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.


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