Earlier this year, when the House of Representatives was considering an abortion restriction, Democrats repeatedly invoked the argument that terminating pregnancy is a right enshrined in the foundational document of our government. President Obama has repeatedly made this claim as well, calling abortion a woman’s "fundamental constitutional right."
The argument, however, rests not on the text of the Constitution, which never mentions abortion explicitly, but on a series of decisions by the Supreme Court, originating in two simultaneous cases from 1973, Roe v. Wade and Doe v. Bolton. As a result, the strength of the Democratic argument that abortion is a constitutional right lies fundamentally in the strength of these two decisions.
But how strong are they? A new book by Clarke Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade, examines the background and arguments of these two pivotal cases to answer just this question. Forsythe concludes that the justices vastly overstepped their mandate and issued flawed decisions.
The case came to the Court in a highly irregular way. "Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion," Forsyth writes.
At least some justices assumed the Court would review only procedural matters, not the more controversial issue of abortion. Further, the procedural questions took up much of the oral arguments, leaving Forsythe writes, little time "for the substantive questions in both cases."
The Court could have issued a much narrower decision, or it could have kicked the case back down to the lower Courts for a trial, at which point a factual record could have been introduced and examined. That didn’t happen.
Instead, the Court launched a full assertion of the right to abortion. Much of the decision in Roe v. Wade examines the history of abortion in Western society, especially in the context of English common law and the American legal tradition. The Court concluded that the abortion restrictions being challenged were a novel development, and that abortion was widely practiced and accepted in earlier times.
Forsythe picks apart this historical analysis with precision and understanding. The revisionist history the justices relied on was deeply flawed, as state legislatures had restricted abortion well before the Civil War. And the justices misinterpreted parts of the common law to give a right to an abortion when there was none.
Further, the decisions placed an unjustified emphasis on the viability of the baby outside of the womb as the point at which the state’s interest in protecting the baby kicks in. Choosing viability as the "critical moment" is arbitrary and unjustified in legal history, Forsythe argues. And even though the justices said states could prohibit abortion after viability, their decision in Doe v. Bolton essentially allowed abortion for any reason at any point by carving out an exception for the mental health of the mother.
If the legal pretenses and historical analysis of the decisions are dubious, then the medical evidence undergirding it provides the final strike against them. The presentation of the medical evidence in the decision itself is deeply problematic, if not outright illogical, Forsythe notes. The decision references "the now-established medical fact" that "until the end of the first trimester mortality in abortion [for women] may be less than mortality in normal childbirth." Undeterred, however, the justices go on to name many possible injuries to women that could come from giving birth, such as financial and emotional strain.
Contrary to the justices’ claim, however, abortion is not safe for the mother. Since 1973 studies have shown that abortion increases the risk of premature birth and placenta previa in future pregnancies, as well as the incidence of drug and alcohol abuse, psychiatric admission, and suicide. An abortion also takes away the protection against breast cancer that a first pregnancy provides. And, of course, there are the stories of women (and babies) dying after a botched abortion at the hands of careless or malicious doctors like Kermit Gosnell.
Forsythe’s conclusions are not unexpected. He is the senior counsel and former president of Americans United for Life, a pro-life law firm based in Washington, DC. His pro-life bias occasionally makes his analysis of facts and statistics somewhat uneven, as he picks apart problematic studies but does not apply the same rigor to those studies that support his case. He sometimes presents the spectrum of the abortion debate a little unfairly.
But in the end Forsythe’s bias strengthens Abuse of Discretion in more ways than it weakens it. His interest in the topic is evident in the extensive research and thorough analysis on display in the book. In order to get a deeper understanding of the circumstances leading up to the case, Forsythe examined the personal papers of eight of the nine justices, some of which became available only last year. The chapters have on average over 90 endnotes each, and the book is comprehensive in its examination of the manifold aspects of the abortion debate.
Forsythe is clear, however, that his arguments likely would not have swayed the Court. The decision is so flawed, the reasoning so one-sided, that the decision was not a genuine attempt at a just interpretation of the text of the Constitution.
Instead, Roe v. Wade and Doe v. Bolton were victories for an ideological agenda: abortion on demand, with no effective legal restrictions. It is no coincidence that the Court handed down these decisions in the middle of the sexual revolution and social upheaval of the 1960s and 1970s. The Court was striking a blow for sexual liberation and individual autonomy—history and science be damned.
Liberals are not protecting the sanctity of the Constitution when they deploy our founding text in this debate. They are only protecting abortion.