The trouble with Roe v. Wade
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.