[For example], when you read Roe v. Wade and Doe v. Bolton, you come across statements like "abortion is safer than childbirth." That wasn't in the lower court rulings. Where did they get that?
[Or take] the viability rule [that abortion should be legal up to viability]. That's one of the big parts of Roe v. Wade, but that wasn't even in the lower court opinion. That wasn't argued. The word viability wasn't even mentioned in four hours of argument. Where did they get that?
I talked with Dorothy Beasley, who represented the state of Georgia in defense of Georgia's law in Doe v. Bolton. I asked her what her reaction was to the opinions, and she said, "It was shocking. Nobody argued viability."
Were you able to tease out exactly where these ideas came from?
Yes, that's why the private papers are so much more important. Fear of "the population crisis" was a huge influence. They drank that in without any trial or evidence or expert opinion in the lower courts. There was no evidence. There was no record. They absorbed that through the media.
The larger theme of the book is that justices are human. They're fallible. We should be concerned about judicial activism: What role should these justices play in American society? It reinforces what people have thought for years that they were just legislating. They were shooting from the hip.
Were they were thinking? We have to get rid of these abortion laws?
That's right. A clerk for Justice Marshall at the time of Roe and Doe subsequently said that their agenda was to sweep away the abortion laws as quickly as they could.
What would abortion look like if those two rulings hadn't been issued?
[At the time] you had roughly 20 states that allowed abortion for various reasons. But 30 states still retained their prohibition on abortion except to save the life of the mother. You had no public support for what the Court did.
If the Court had overturned Roe and sent the issue back to the people, then you might have a dozen states today that would allow abortion on demand. You might have a dozen states that would prohibit it except to save the life of the mother. You might have 25 in the middle that allow it for differing reasons. But that might change as the legislative and democratic debate became more robust.
In the book, I dispel the myth that overturning Roe means the Court makes abortion illegal or some federal or national prohibition goes into effect immediately. All of those are urban legends. If the Court overturned Roe, it would, in effect, send the issue back to the states. There aren't enforceable prohibitions on the books in 40 to 45 states.
The day after an overturn of Roe, abortion would still be legal in 40 to 45 states up to viability. There would be no immediate change, and it would go back to legislative debate. Over the course of one to three legislative sessions, public policy would be better aligned with public opinion.
So if Roe is overturned, then the pro-life community has to step up to the challenge at the state level?
That's right. There is not going to be any turning back to the 1940s or '50s or '60s.
What is the core insight for the pro-life community going forward?
Pragmatically, the Court assumed the role of "national abortion control board" in 1973 in Roe v. Wade, and they have assumed that role for 40 years. They control every aspect of abortion policy either directly or through the lower federal courts.