abuse-or-discretionAbuse of Discretion: The Inside Story of Roe v. Wade by Clarke D. Forsythe (Encounter, $31, 477 pages)

In Abuse of Discretion: The Inside Story of Roe v. Wade, Clarke D. Forsythe has written an insightful and original book on the infamous 1973 decision that legalized abortion in all nine months throughout the United States, and the lesser known companion decision Doe v. Bolton, which permitted abortion restrictions as long as they included exceptions for a broadly defined physical and psychological “health of the mother.” Forsythe is legal counsel for Americans United for Life and he explores the history of the case, delving into the private papers of eight of nine justices involved in the 7-2 decision to understand how they made the ruling they handed down. He asks and answers: why did the Supreme Court of the United States make such a sweeping decision.

One would hope that the Court would decide these cases based on legal merit and due consideration of pertinent scientific, medical, and social facts. Instead, Forsythe paints a mostly political picture involving the ideologies of the justices as well as the maneuvering amongst themselves to arrive at the decision.

Justice Harry Blackmun, who wrote the Roe decision, admitted nearly two decades later that it was a “mistake” to even hear Roe, saying the justices initially thought they were considering narrow procedural questions relating to the issue. Forsythe points out that Blackmun’s first draft of the opinion would have overturned the Texas law that permitted abortion only in cases to save the mother’s life on the narrow grounds that it was unconstitutionally vague. Justice William O. Douglas, who was on the far-left of the Court, threatened to write a dissent unless Blackmun made the decision broader. The second draft wanted to imbue the end of the first trimester as the time for a significant restraint for procuring an abortion (although one the justice admitted was “arbitrary”) but he caved to pressure from his own law clerk and two colleagues to move it back to the third trimester criteria of “viability” before significant restrictions could be imposed. Justices Lewis F. Powell and Thurgood Marshall, who both wanted a broad abortion license, won their victory to extend the “right” to abortion until viability.

What is significant is that viability was not an issue in either Roe or Doe in the lower courts and no party in the case urged the Supreme Court to adopt viability as a standard in their presentations. In other words, the majority decided to take it upon themselves make viability a legally significant factor.

Further proof of the justices fishing for evidence to support their pre-determined conclusions is the inclusion in Blackmun’s decision of research by Cyril Means, legal counsel to the National Abortion Rights Action League, who made historically inaccurate claims about past abortion laws (or lack thereof). It should be self-evident that historical scholarship from NARAL might be biased, but the Supreme Court used it to prop up shoddy legal reasoning. Likewise Blackmun cited Planned Parenthood and other non-peer reviewed research to make the inaccurate claim that childbirth was more dangerous than abortion.

Forsythe refutes the claim made by lawyer Sarah Weddington, who argued in favour of overthrowing the Texas abortion limits in Roe, that legalizing abortion would lead to a plethora of benefits for society. He notes that poverty rates, child abuse, maternal mortality, out-of-wedlock births and a host of other social pathologies and problems have hardly changed (or gotten worse) since Roe came down. This buttresses his cases that the social facts were poorly understood or ignored in the decision.

Forsythe notes that neither side has “won” the debate, the exception to the rule that controversial decisions are eventually generally accepted by the public. And this is where Forsythe’s book turns from jurisprudence to politics.

Roe not only influenced the scope of abortion’s availability and set precedent for later decisions, it had a sweeping effect on American politics, because it fundamentally altered the debate about abortion by circumscribing it. Roe federalized the issue, preventing the 50 states – so-called laboratories of democracy – from experimenting with different rules and regulations as decided by elected state representatives and representing local values and mores. Forsythe estimates that if Roe was overturned, about a dozen states “would maintain abortion on demand” while maybe “ten states might prohibit abortion except to save the life of the mother” and the other states would take different approaches to restricting abortion. He correctly concludes that “more restrictions on post-viability abortions wouldn’t satisfy activists on either side of the spectrum, but would be more in accord with public opinion.”

The most stunning revelation in Forsythe’s book is the fact that Justice Powell, who supported abortion, wanted to write a scathing comment about the profit-seeking and unethical purveyors of abortion mills, but that Blackmun and William Brennan persuaded him from doing so because Brennan said it would provide “aid and comfort” to the pro-life movement.

The abuse of discretion that Forsythe argues forcibly against is the raw judicial activism of the Supreme Court justices basing their decision on the (erroneous) medical facts that were not argued before the courts and therefore poorly understood, as well as the cherry-picking of other facts and arguments.

There is no shortage of books and essays about Roe v. Wade, but anyone interested in the case, or in how the court works in general, should read Forsythe’s accessible and readable Abuse of Discretion.

 Paul Tuns is editor of The Interim.