Bench Memos

Clarke Forsythe’s New Chronicle of Roe v. Wade

The weekend issue of the Wall Street Journal features Jeffrey Rosen’s favorable review of Clarke D. Forsythe’s important new book, Abuse of Discretion: The Inside Story of Roe v. Wade. Rosen’s review is available, for subscribers-only (I think), here. Here’s an excerpt:

The most striking insight to emerge from Mr. Forsythe’s book is how haphazardly the court selected “viability” as the point in fetal development after which abortions could be prohibited by the state. Mr. Forsythe suggests that the justices and law clerks, essentially, pulled the viability standard out of a hat.

Blackmun’s second draft opinion emphasized the end of the first trimester (12 weeks) as the “critical” limit to the right to an abortion. “This is arbitrary, but perhaps any other selected point, such as quickening or viability is equally arbitrary,” he wrote to his colleagues. But Blackmun’s law clerk proposed viability, which occurs at least three months later, and Powell’s law clerk, influenced by a lower-court opinion by Judge Jon O. Newman, also championed the viability cause. Powell and Thurgood Marshall, who supported a broad abortion right on pragmatic grounds, persuaded Blackmun to extend the period for broad protections of the right to abortion. According to Mr. Forsythe, viability was not mentioned when Roe and Doe were argued in the lower courts and in the Supreme Court, and the parties did not urge the justices to adopt viability in their briefs.

Why does it matter that the justices chose an arbitrary dividing line? Because, Mr. Forsythe argues, when a plurality of justices upheld Roe in the 1992 case Planned Parenthood v. Casey, they stressed that the court’s adoption of viability was “a reasoned statement, elaborated with great care.”

I’m about 80% of my way through Forsythe’s book, and can attest that it provides a comprehensive, intelligent, and very readable account both of the inner workings of the Court on Roe and of broader issues related to abortion, including the consequences of Roe. (I don’t know that anyone can be neutral on Roe, and Forsythe certainly isn’t—he has long worked for Americans United for Life—so it’s noteworthy that Rosen credits him with a “generally fair-minded narrative.”) For those interested in the abortion debate (as everyone ought to be), this is definitely a book that you’ll want to read and keep handy on your bookshelf.

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