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  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].
[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.
Think of any other public health issue in America. It's decided by the people through their representatives—even Obamacare. Whatever you think of the Affordable Care Act in the last year when the Court ruled, it left the issue to Congress and to the democratic process.
But the Court completely took the issue of abortion away from the American people. The justices control it, every aspect of it.
Despite such control, have you seen some progress on the pro-life front?
There has been considerable progress in limiting Roe v. Wade and the number of abortions. In the past five years, 12 states have passed 20-week limits. Those limits are ultimately going to end up in the Supreme Court, and the Court's going to give a thumbs up or thumbs down.
Public opinion has improved. The Gallup poll in May on the abortion issue shows a more pro-life America. [There is still] cultural work, educational work, political work, legal work—it's all needed. The direct services for women that CareNet and Heartbeat International provide are vital. Alternatives are vital.
There is a growing body of international medical studies showing long-term health risks to women after abortion. That data weren't available to the justices in 1972. It's really grown in the last two decades. It's not just American women. It's European women, Scandinavian women, Latin American women, and studies from Australia, New Zealand, Japan, and other Asian countries. They show an increased risk of pre-term birth after abortion. They show an increased risk of mental trauma after abortion.
What about some of the other measures moving forward—the fetal pain legislation, the personhood-at-conception bills, efforts to defund Planned Parenthood?
It's the nature of legislation in a democracy to have all kinds of proposals proposed. It's all good. But the devil is in the details. How these things are drafted make a big difference, and so it's not possible to get away from those details.
Christians have seen challenge after challenge to Roe over the years, and they just don't seem to go anywhere. What is the best strategy to accomplish an overturn?
The question is: Are we getting to a tipping point? If you're at the top of the Willis Tower [in Chicago] and look down at the street, you can't see much movement. But when you get down to ground level, you see hubbub and people moving through the streets and on the sidewalks, and you see a lot of movement.
There has been substantial movement. The Court has retreated from Roe v. Wade in three or four cases, and that has opened up the way for the states to move ahead with regulations or prohibitions. Take the 12 states with 20-week limits on abortion—that was impossible in the 1980 and '90s.
It's a long game. I do think Roe v. Wade will definitely be overturned, because I think the fissures and the defects are just so profound that it is just like the fall of the Soviet Union. Gorbachev wanted to hold on but couldn't.
Ultimately, the Court will not be able to keep Roe v. Wade, because its defects are so profound. It is in such conflict with where the public is going.