Abuse of Discretion: The Inside Story of Roe v. Wade, by Clarke D. Forsythe (Encounter, 496 pp., $27.99)
Roe v. Wade was a “reasoned statement, elaborated with great care.” So the Supreme Court claimed in 1992, when it reaffirmed its 1973 ruling that all states had to allow abortion for any reason and at any stage of pregnancy. It is a boast that cannot withstand the scrutiny that Clarke Forsythe applies.
A longtime legal strategist for the pro-life movement, Forsythe has gone deep into the archives to shed new light on Roe and its companion case, Doe v. Bolton. Even people who have studied the issue will learn something new.
Above all, Forsythe explains the significance of a fact we have known at least since The Brethren, the 1979 book on the Court by Bob Woodward and Scott Armstrong. They reported that the Court took up these cases “to determine whether to expand a series of recent rulings limiting the intervention of federal courts in state court proceedings.”
As Forsythe points out, the Court did not need to have a detailed factual record from the lower courts to settle the procedural issue. The thinness of the record became a bigger problem when the justices decided to use the cases to determine the acceptable range of abortion regulation — or, to look at it a bit differently than Forsythe presents it, a bigger opportunity for policymaking untethered to anything but the justices’ opinions.
By looking through the justices’ papers, Forsythe is able to document how the standard of “viability” came to pervade the Court’s abortion jurisprudence, at least rhetorically. Roe says that states cannot prohibit abortion until the fetus is viable, and Doe says they cannot prohibit it after viability without an extremely broad exception for the mother’s health, including her emotional health. Yet viability was not mentioned in the lower courts, in the briefs from parties to the case, or in oral arguments at the Supreme Court.
The draft of Roe that Justice Harry Blackmun sent to his colleagues on November 21, 1972, set the dividing line at the end of the first trimester. That’s when an unqualified right to abortion would give way to a theoretical power of states to restrict it. By December 15, he had settled on the considerably later line of viability. (The decisions were released on January 22, 1973.) As Forsythe shows, Blackmun was reflecting the sentiment among several justices that pregnant women needed more than three months to make the decision to abort their children — that sentiment, and nothing more.
The lack of a trial record also enabled the justices’ many false assumptions about abortion and abortion law to go unchallenged. Forsythe demonstrates that the justices simply misunderstood the common law’s “born alive” rule, which required that the child be injured in utero, delivered alive, and then die of the injuries before a homicide prosecution could take place. Justice Potter Stewart believed that the rule implied that humanity began at birth, and lawyer Sarah Weddington, challenging the anti-abortion law of Texas at issue in Roe, said that it meant that the right to life began after 40 weeks’ gestation.
In fact, the common law followed the rule for evidentiary reasons: Given the state of medical knowledge at the time, the live infant had to be observed to determine whether the injury had caused the death, and therefore to rule out a natural stillbirth. The law never distinguished between births at term and births before term, because the rule had nothing to do with the stage of gestation; and the rule itself presupposed, contrary to Justice Stewart, that unborn children could suffer punishable injuries.
The justices also relied uncritically on the activist scholarship of Cyril Means Jr., who claimed that abortion had been a common-law liberty at the time of the American Founding and had been restricted by later legislators purely to protect maternal safety. Modern abortion being much safer for women, the argument went, the laws should now be discarded. Means’s work has by now been thoroughly discredited: Abortion was not a common-law liberty, and the laws were tightened in the 19th century primarily to protect unborn children.
The movement to liberalize abortion laws, as it pressed its case in the 1960s and 1970s, vastly exaggerated the extent of illegal abortion and its death toll for pregnant women. The actual number of deaths from illegal abortions, as far as we can tell, plummeted in the decades before any state had liberalized its laws, thanks to the development of antibiotics. The justices nonetheless appear to have accepted the mythology. They were also wrong, in Forsythe’s view, to read the available evidence as indicating that abortion was safer for women than carrying a pregnancy.
The result of the Court’s evidence-free foray into lawmaking was one of the most liberal abortion laws in the world, a fact that the justices in the majority and their like-minded successors have gone to great lengths to obscure. Forsythe notes that Justice Sandra Day O’Connor claimed, in a book she wrote while on the Court, that Roe had made abortion a constitutional right “in the first three months of pregnancy.” Justice Stephen Breyer wrote similarly in his own book. Their own decisions in abortion cases show that they know the claim is misleading.
The justices have often been portrayed as having merely ratified a social trend that would have triumphed even without their help. But few of the states that had liberalized their abortion laws had gone as far as Roe and Doe, the latter of which struck down Georgia’s liberalized law for its restrictions. (One of the minor services Forsythe performs is to recover the record of how ably Dorothy Beasley defended the Georgia law in oral argument before the Supreme Court, and how thoroughly the justices ignored her cautions, questions, and corrections.) And the political momentum for liberalizing the abortion laws had stalled in the early 1970s. No liberalizing legislation passed any state in 1971 or 1972, and two states rejected the idea by large margins in referenda while Blackmun was working on his drafts.
In a 1983 case, Justice Lewis Powell, part of the Roe majority, considered writing a decision that acknowledged “that abortion mills do exist, and are operated to the great profit of unethical physicians who care little about their patients.” Justices Blackmun and William Brennan (who had also voted for Roe) persuaded him to refrain. Brennan said any such reference would give “aid and comfort” to pro-lifers. Forsythe does not render harsh judgments on any of the justices he discusses, but the reader has sufficient evidence to conclude that some of the justices were politicians in robes, and shifty politicians at that.