The trou­ble with Roe v. Wade

The Washington Times Weekly - - Culture, Etc. - By Michael J. New

Roe v. Wade is eas­ily one of the most con­tro­ver­sial Supreme Court de­ci­sions in U.S. his­tory. Af­ter it was is­sued in Jan­uary 1973, it sparked a firestorm of crit­i­cism from not only pro-lif­ers, but also prom­i­nent con­sti­tu­tional law schol­ars sym­pa­thetic to le­gal abor­tion. While plenty has been writ­ten about the de­ci­sion it­self, there has been rel­a­tively lit­tle in­formed com­men­tary about the process, the oral ar­gu­ments and the sources and ev­i­dence the jus­tices used. “Abuse of Dis­cre­tion” by Amer­i­cans United for Life’s gen­eral coun­sel, Clarke Forsythe, nicely fills that void. Mr. Forsythe’s orig­i­nal re­search on the pri­vate pa­pers of Jus­tice Harry Black­mun pro­vides some im­por­tant new in­sights. His de­pic­tion of the Roe v. Wade de­ci­sion re­veals nu­mer­ous flaws that should dis­turb not only pro-lif­ers, but any­one who care about sound ju­rispru­dence.

In­deed, the ar­gu­ments that pro­lif­ers make against the Roe v. Wade de­ci­sion center on the fact that nei­ther abor­tion rights nor the right to pri­vacy is ex­plic­itly men­tioned in the U.S. Con­sti­tu­tion. What is unique about Mr. Forsythe’s book is that he goes be­yond those ar­gu­ments and tries to en­gage peo­ple with a more lib­eral view of ju­rispru­dence. Con­tem­po­rary ju­di­cial de­ci­sions are of­ten in­flu­enced by pub­lic opin­ion, aca­demic re­search, and ideas and judg­ments shaped by the Amer­i­can ex­pe­ri­ence. How­ever, Mr. Forsythe per­sua­sively makes the case that even un­der th­ese more lib­eral stan­dards, Roe v. Wade is still deeply flawed. That is partly be­cause the pub­lic health data and the his­tor­i­cal in­for­ma­tion that Jus­tice Black­mun re­lied on in his ma­jor­ity opin­ion were of­ten in­cor­rect, in­com­plete or mis­lead­ing.

For in­stance, Black­mun’s ma­jor­ity opin­ion cites ev­i­dence that there was no com­mon-law pro­hi­bi­tion against abor­tion when the U.S. Con­sti­tu­tion was adopted and the pur­pose of sub­se­quent anti-abor­tion leg­is­la­tion was to pro­tect the mother — not the child. How­ever, Black­mun’s pri­mary source was a se­ries of ar­ti­cles writ­ten by Cyril Means, the gen­eral coun­sel to the Na­tional Abor­tion Rights Ac­tion League (NARAL). Sub­se­quent le­gal and his­tor­i­cal schol­ar­ship has re­futed Means’ claims. Ad­di­tion­ally, pub­lic health re­search that pur­port­edly showed that abor­tion was safer than child­birth played a prom­i­nent role in Black­mun’s opin­ion. How­ever, of the seven stud­ies that Black­mun cited, none was peer re­viewed and none even con­sid­ered long-term health risks in­volved with le­gal abor­tion.

Mr. Forsythe also as­tutely points out a num­ber of pro­ce­dural prob­lems with the Roe v. Wade de­ci­sion. For in­stance, there was no clear trial record of fac­tual ev­i­dence. Ad­di­tion­ally, much of the time de­voted to oral ar­gu­ments was spent on pro­ce­dural and ju­ris­dic­tional ques­tions. Very lit­tle time was spent on the con­sti­tu­tional jus­ti­fi­ca­tion for a right to an abor­tion. Fur­ther­more, the con­cept of vi­a­bil­ity was never once even men­tioned dur­ing the oral ar­gu­ments. Mr. Forsythe presents cor­re­spon­dence be­tween Jus­tices Black­mun, Thur­good Mar­shall and Lewis Pow­ell show­ing that their de­ci­sion to ex­pand the abor­tion right to vi­a­bil­ity was not based on any le­gal ar­gu­ment, but in­stead be­cause it would mean more ac­cess to abor­tion.

This ex­panded ac­cess to abor­tion has had a pro­foundly neg­a­tive im­pact on pub­lic health. Mr. Forsythe de­tails the nu­mer­ous abor­tion clinic scan­dals that have come to light since 1973. He also ably sum­ma­rizes aca­demic re­search that shows that abor­tion is linked to an in­creased risk of breast can­cer and a higher in­ci­dence of var­i­ous psy­cho­log­i­cal prob­lems. Fur­ther­more, con­trary to the claims of abor­tion pro­po­nents, ex­panded ac­cess to abor­tion has of­fered no so­ci­etal ben­e­fits. There is no ev­i­dence that Roe v. Wade sig­nif­i­cantly re­duced ma­ter­nal mor­tal­ity, child abuse, spousal abuse, poverty or the out-of-wed­lock birthrate. Fur­ther­more, re­search on the in­creased pro­fes­sional suc­cess of women never men­tions ex­panded ac­cess to abor­tion as a sig­nif­i­cant fac­tor.

Un­like many Supreme Court de­ci­sions deal­ing with con­tro­ver­sial is­sues, Roe v. Wade has never gained wide­spread pub­lic ac­cep­tance. Most Amer­i­cans sim­ply do not sup­port abor­tion on de­mand. Mr. Forsythe has writ­ten a book that raises se­ri­ous con­cerns not only about the out­come of Roe v. Wade, but also the process that led to the de­ci­sion. In­stead of re­ly­ing on the usual con­ser­va­tive talk­ing points, Mr. Forsythe con­ducted orig­i­nal re­search that re­veals new in­for­ma­tion about sig­nif­i­cant prob­lems with both the le­gal rea­son­ing be­hind the de­ci­sion and the ev­i­dence cited in the ma­jor­ity opin­ion.

“Abuse of Dis­cre­tion” should en­gage read­ers out­side the pro-life move­ment by mak­ing a com­pelling ar­gu­ment that even un­der lib­eral stan­dards of ju­rispru­dence, Roe v. Wade is a deeply flawed de­ci­sion. All in all, by care­fully de­tail­ing the prob­lem­atic process be­hind Roe v. Wade and its neg­a­tive con­se­quences, Mr. Forsythe has pro­vided a fine ser­vice for his read­ers. Michael J. New is an as­sis­tant pro­fes­sor of po­lit­i­cal sci­ence at the Univer­sity of Michi­gan at Dear­born and an as­so­ci­ate scholar at the Char­lotte Lozier In­sti­tute.

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