Clarke Forsythe has studied Roe v. Wade for 25 years. However, his research has taken an interesting twist over the past 15 years due to the release of the personal papers of a few Supreme Court justices who were a part of that fateful decision.
What he discovered were a number of blatant legal and factual errors the court made in declaring abortion legal on Jan. 22, 1973. Forsythe, who serves as the senior counsel at Americans United for Life, is the author of the book, “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books, $27.99). He recently spoke with Our Sunday Visitor about the political, legal and cultural climate that led to the decision and its dire consequences more than 40 years later.
Our Sunday Visitor: Most people associate abortion law with Roe v. Wade. However, there were two decisions made on Jan. 22, 1973. What was the other one?
Clarke Forsythe: In Doe v. Bolton, they produced the definition of health. They defined it as any reason or factor related to the emotional well-being of the patient. Thus, it became a limitless health definition. So, when you put the two together it explains why the United States is one of only four nations that allows abortion for any reason after fetal viability. We are ranked with North Korea, China and Canada as four nations out of 195 around the globe that allow abortion for any reason after fetal viability.
OSV: What was the political or legislative climate in the court during that time?
Forsythe: The justices first took these two cases in April of 1971, not to create a right to abortion but rather to settle a mundane procedural issue. But in September of 1971, there was a crisis in the court when Justices (Hugo) Black and (Marshall) Harlan retired within a space of a week due to ill health. Black died a week later, and Harlan died at the end of 1971.
That reduced the court to seven and it flipped the balance of the court and created a four-justice block of pro-abortion justices that pushed (William) Brennen, (Potter) Stuart and (Thurgood) Marshall to take the two cases that were chosen to settle a state/federal jurisdictional issue and not intended to create a right to abortion.
OSV: So, there was an agenda here?
Forsythe: Yes, I argue that if Black and Harlan had been on the court, they would have probably voted against a right to abortion. But, with their absences, these four justices created a temporary majority. Oral arguments were heard in December of 1971, and they immediately pushed to sweep away the abortion laws and to declare a right to abortion as quickly as possible before those vacancies could be filled.
OSV: How has the release of the papers changed your understanding of the court?
Forsythe: I was surprised to find that the justices latched on to this medical myth that abortion was safer than childbirth. And that medical assumption drove the outcome. It shaped the whole opinion even though there was no reason, evidence or facts on record in 1971 or ’72 to show that abortion was safer than childbirth. Also, there was no record, no trial, in Roe v. Wade or Doe v. Bolton. They were decided on motions to dismiss, and the cases went straight to the Supreme Court. And when they got there, there was no judiciary record, no trial, no hearings nor cross-examination. So what ended up in the courts opinion was based upon independent research and briefs filed in the Supreme Court.
OSV: Why do you say Roe was a procedural mistake?
Forsythe: It is the most controversial case of the 20th century with the least amount of evidence to support it.
They took the cases to decide the jurisdictional rule with no evidentiary record on abortion or its implications and then decided to use the cases to decide a right to abortion which violated many prior decisions in which they said, “We will not decide judicial issues without a record. We will not decide constitutional cases without a full record.” The justices violated a long-standing principle that they have espoused before and since that they would not decide constitutional questions without an adequate record, and in Roe and Doe, there was no evidentiary record at all.
A renowned federal judge, Henry J. Friendly, pointed out this mistake by the justices in these decisions in a little-noticed article in the 1970s. The justices’ papers show that mistake in greater detail and clarity than ever before.
Contrary to the normal conduct of the court, the justices not only invalidated state statutes but proceeded to write, in effect, a detailed, national abortion law that it has continued to impose for 40 years.
Eddie O’Neill writes from Missouri.