A recently published book, “Abuse of Discretion: The Inside Story of Roe v. Wade,” (Encounter Books) by Clarke D. Forsythe, examined the papers of eight of the nine justices responsible for the Roe v. Wade decision, as well as Doe v. Bolton.
Forsythe, senior counsel at Americans United for Life, details in several hundred pages, the reasoning that led to the wholesale approval of abortion.
Even those sympathetic to Roe v. Wade refer to the decision as an “engine of controversy,” Forsythe said in his introduction. Others described the judgment as “the preeminent symbol of judicial overreaching.”
The effect of the 1973 decisions was to nullify all of the abortion laws in the 50 states, enabling abortion clinics to open everywhere. According to Forsythe the Supreme Court surprised even pro-abortion activists, who did not expect such a favorable decision.
In the judgment the justices decided that the right to liberty included a right to privacy and that abortion is part of that right to privacy. Then, they also affirmed that the unborn are not persons, as defined by the Constitution.
In the Doe judgment the justices also defined health as including the emotional well-being of a pregnant woman, without defining what this meant, leaving it at the discretion of those carrying out abortions.
As commentators on the Supreme Court’s decisions observed the radical nature of the judgments placed America amongst only a handful of countries in the world with such sweeping liberty to abort the unborn.
Another major criticism made by Forsythe is that the Supreme Court’s intervention took the abortion issue out of the control of state legislatures, where it had resided until then, thus overriding the normal political processes of debate and democratic process.
“The Justices centralized what had previously been decentralized,” he commented.
This meant, he continued, that the American people were no longer free to debate and decide on the issue. While a number of states had already allowed abortion before 1973 the result of the Supreme Court decision meant that the number of abortions rose significantly, from 550,000 in 1972, to a high of 1.6 million in 1992.
In concluding Forsythe commented that the Justices “seriously underestimated the storm they were heading into, and the conditions that caused it.”
Roe, he said, “was heavily influenced by short-term legal, political and social calculations, including heated population crisis predictions that were eventually proven false.”
“Numerous assumptions – about the risks of abortion and future abortion practice – were based on little more than a hunch,” he added.
Forsythe went on to observe that, while the Justices thought they were acting in accord with public opinion, in fact they were going well beyond what the public supported.
There are only four nations in the entire world, he noted, that allow abortion after fetal viability – the United States, North Korea, China, and Canada.
By acting in such a unilateral way, Forsythe said, they made the issue of abortion “more divisive and irresolvable by taking it out of the democratic process where even the most controversial political issues are moderated by political and legislative debate.”
Forsythe also took issue with the arguments used by abortion supporters that its legalization would have positive results for women, in terms of reduced maternal mortality. “There is no peer-reviewed data to show a reduction in maternal mortality,” as a result of the legalization of abortion, he affirmed.
In fact, data from countries that do not allow abortion, such as Chile or Ireland, show that maternal health is better compared to neighbouring countries that have legalized abortion.
“The claim that Roe has reduced maternal mortality is a house of cards,” he affirmed.
Forsythe also amply documented the abuses that have taken place in abortion clinics, with unsafe medical practices and the medical and psychological effects that have affected many women.
“There is growing evidence that the national policy of abortion for any reason at any time of pregnancy – never yet approved by the people through popular referenda – has brought a load of physical, emotional, and social problems that in fact burden women and impede their happiness.”
At the same time Forsythe warned the pro-life movement against putting its hopes in another legal decision that would overturn the 1973 verdicts. In the majority of states, he observed, there are no prohibitions against abortion.
Legislative debate at the state level is now going on, he noted. In recent years a number of states have restricted abortion after 20 weeks of pregnancy.
Abortion will without doubt continue to be a hotly debated topic. Another issue, same-sex “marriage”, is also the subject of numerous court battles, not the least in California where the state court overruled a vote by the people. It remains to be seen if judicial intervention or democracy will have the upper hand.