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Roe v. Wade's Days Are Numbered

Forty years after the U.S. Supreme Court issued its Roe v. Wade decision, a leading pro-life legal expert believes the decision has never been more vulnerable to being overturned.

In his new book, Abuse of Discretion: The Inside Story of Roe v. Wade, Clark Forsythe, senior legal counsel at Americans United for Life, details what he uncovered in examining the private papers of the justices, their case files, and oral arguments. After 20 years of research, Forsythe found that:

  • The justices decided to hear Roe under a misunderstanding that it concerned state criminal prosecutions, not a constitutional right to abortion.
  • They arbitrarily expanded fetal viability from 12 weeks to 28 weeks with little discussion or medical knowledge.
  • The Court's majority relied heavily on popular, but unproved, '70s-era evidence that there was an urgent need for population control in the United States.

Since Roe, there have been 50 million abortions in the United States. Currently, there are about 1 million per year. But public opinion has slowly been shifting toward ending abortion on demand. The 2013 Gallup poll showed that since 1995, more Americans than ever consider themselves pro-life. Overall the nation remains very evenly divided on abortion. Gallup reports that there is a difference of only 3 percentage points between pro-life and pro-choice (48 percent vs. 45 percent).

Timothy C. Morgan, CT senior editor of global journalism, recently interviewed Forsythe about his book, which The Wall Street Journalsaid "provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions."

What did you find in studying the papers of the justices who decided Roe v. Wade?

I looked at the papers of eight of the nine who voted in Roe. The eight have been released to the public. The first shock was that the justices didn't take the two cases—Roe v. Wade from Texas and Bolton from Georgia—to address the abortion issue or declare a right to abortion. They took them to address a mundane jurisdictional procedural issue about the relationship between state and federal courts.

They did that in April 1971, while Justices Black and Harlan were still on the Court. Those two justices would likely have voted against a national right to abortion. Then a crisis in the Court occurred in September 1971. Black and Harlan abruptly retired due to ill health the same month. Black died within a week. Harlan died at the end of the year. That was decisive, and it reduced the number of justices to seven.

It flipped the balance of the Court. It enabled a temporary majority of four justices—Brennan, Douglas, Stewart, and Marshall—and gave them the opportunity to take advantage of the vacancies, to take the two cases, and instead use them to declare a right to abortion and to push as hard as they could to eliminate the abortion laws before President Nixon could fill the two vacancies.

I had never heard that those justices originally took the case as not to address mundane procedural issues. In March [2013] at an academic conference, I was shocked to hear abortion rights academics say, "Oh, yeah, we knew that."

Why is this important?

Because reading judicial opinions is a little bit like reading an e-mail trail. If you go back along the trail, you see where the justices got that idea, or where that was noted in the argument, or where that was in the briefs—how they got that [to an opinion].

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Roe v. Wade's Days Are Numbered