An interview with Clarke D. Forsythe, author of Abuse of Discretion: The Inside Story of Roe v. Wade

In CWR

Forty years after Roe v. Wade, we are just now learning the back history to the Supreme Court decision that allowed abortion on demand to become a national policy. In his insightful and well-researched new book, Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books, 2013), Clarke D. Forsythe chronicles the complicated history and political details that led to the most sweeping Supreme Court decision in our history. Recently, Catholic World Report caught up with Forsythe, senior counsel at Americans United for Life, to discuss the twenty years of research that went into this important book. 

CWR: The "right to privacy" established in Griswold v. Connecticut served as a precursor for Roe v. Wade. Was Griswold the decision that ultimately paved the way for the justices’ endorsement of legal and unlimited abortion in the United States? 

Forsythe: Not entirely by itself. The Justices pointed to a number of decisions that they said created a right to privacy, including the 1972 decision in Eisenstadt v. Baird—also heard during the fifteen-week twin vacancies after the retirements of Justices Black and Harlan in the fall of 1972—which significantly extended Griswold to strike down regulations on the sale of contraceptives to single people. The justices largely abandoned the right to privacy in 1992 in Planned Parenthood v. Casey and justified Roe on the basis of the “reliance interests” of women in abortion as a back-up to failed contraception—the new glue that holds together the right to abortion. 

CWR: Most non-legal scholars overlook the significance of Roe v. Wade's companion case, Doe v. Bolton. Why do you insist that Doe is so important? 

Forsythe: Two main reasons: First, it is Roe and Doe together which gave us the national policy of abortion for any reason, at any time of pregnancy. Roe declared a right to abortion up to fetal viability; Doe gave us the “health” exception (defined as “emotional well-being”) after fetal viability, which is left to the discretion of the provider.

Secondly, Doe struck down the 1968 Georgia law as too strict, which allowed abortion in certain circumstances, including the health and safety regulations in the Georgia laws. 

CWR: Given the cultural currents of the sixties and seventies—more women in the workforce, increased sexual license, concerns of overpopulation, and so forth—weren't the justices that decided Roe and Doe just confirming public opinion on the matter of abortion? 

Forsythe: No. In Roe and Doe, the Justices imposed a national policy that, when released, went way beyond public support. And that has continued for forty years. Today, only 7% to 9% of Americans support abortion for any reason, at any time of pregnancy. 

CWR: Your book posits that the justices originally agreed to hear Roe v. Wade and Doe v. Bolton because they believed they were only to be ruling on matters of jurisdiction and whether the plaintiffs in these cases could even bring their case to the federal level. Yet upon hearing the cases they soon realized they had taken on a much bigger issue than originally anticipated. In both hearing and deciding the cases, what factual evidence was considered on record?  

Forsythe: More specifically, the Justices took the cases to decide the jurisdictional issue, and then, after the abrupt retirements of Justices Black and Harlan in September 1971, four justices—Douglas, Brennan, Stewart and Marshall—decided to use the cases to eliminate the abortion laws. There was no trial or evidentiary record in either Roe or Doe, but the flour pushed ahead nevertheless, violating a long-standing rule that the Court will not decide constitutional issues without an adequate factual record. The only “facts” that the justices had were presented to them by interest groups, like Planned Parenthood, in the Supreme Court. 

CWR: You note that the United States is an outlier when it comes to abortion rights. How extreme is the United States juridical position compared to the rest of the world? 

Forsythe: The U.S. is only of only four nations across the globe that allows abortion for any reason after fetal viability: China, North Korea, Canada, and the U.S. 

CWR: Why did the justices adopt a standard of "viability" (meaning the stage in development when the child can survive outside the womb independent from the mother) and how does the Court's definition of "health" factor into this? 

Forsythe: For the first year of deliberations, the justices were only considering creating a right to abortion up to twelve weeks (the first trimester). Then after the second round of arguments in October 1972, the Justices began to negotiate behind the scenes as to the scope of the “right” and Justices Powell and Marshall lobbied Justice Blackmun to expand the right to viability, which they thought at the time occurred around 28 weeks. They did so for purely pragmatic reasons: to expand access to abortion. But then they outlined the Doe “health exception” after viability, which means that the states must allow abortion even after viability, at the discretion of the provider, for any reason related to the “emotional well-being” of the woman. 

CWR: You observe that the idea that "abortion is safer than childbirth" was an influential factor in the justices deliberations on the matter. What medical or scientific research is this assumption based on? 

Forsythe: Yes, that notion drove the entire outcome in Roe and Doe; it was the key medical assumption in the cases. Since there was no trial or evidentiary record in the lower courts in Roe and Doe, there was no factual evidence supporting that notion. That too was urged on the Justices by the attorneys and interest groups in the Supreme Court. The notion was based on maternal mortality numbers from the 1950s in Soviet Bloc countries. Today the notion is based on a mechanical comparison of the official published abortion mortality rate and the maternal (childbirth) mortality rate. But these rates are non-comparable because what goes into the numerators and denominators of the two rates is radically different. It’s apples and oranges. 

CWR: So much of the language of abortion rights is touted under the banner of women's health and women's rights. Has legal abortion been a real service to women? And are there long-term studies that evidence the effects abortion has on these women in the long run?  

Forsythe: One chapter in Abuse of Discretion examines the short-term and long-terms risks and negative impact on health and relationships. Abortion isn’t about women’s health; it’s just population control. There has been a growing body of international medical data on the long-term risks of abortion over the past two decades. We now have more than 130 international, peer-reviewed medical studies finding an increased risk of pre-term birth (PTB) after abortion. And we have more than a hundred international, peer-reviewed medical studies finding an increased risk of mental trauma after abortion. 

CWR: Abortion is often described as the most polarizing political issue in the United States, yet you cite polls showing broad agreement that abortion is the ending of a human life and a general desire to limit abortion in most circumstances. If that's the case, why can't we carve out a common ground position in our public policy? 

Forsythe: The Supreme Court (and the lower federal courts) through Roe and Doe control every aspect of abortion law and policy and practice, and prevents the American people from “carving out” any “common ground position.” As a practical matter, that is being done by the states when they pass the twenty week (five month) limits, supported by majority public opinion. But the abortion proponents file a case in federal court to get them blocked. As long as Roe and Doe remain the law, the public is prevented from agreeing on any “common ground position.” 

CWR: If Roe is eventually overturned by the Supreme Court, as so many pro-life advocates are hopeful for, where and when will abortion be legal? And what will the task of the pro-life movement then be? 

Forsythe: If Roe was overturned today, abortion would be legal in 40 to 45 states tomorrow because there are no enforceable prohibitions on the books in those states. Pro-life legislators are preparing for the “day after Roe” by working on abortion regulations and prohibitions right now.