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Unsettled Law

1/1/2019

by Clarke D. Forsythe

On its 46th anniversary, Roe v. Wade remains wrongly decided, deeply flawed and unworkable

Photo by Leslie Kosoff

The U.S. Supreme Court’s 1973 opinion in Roe v. Wade is as controversial today as when it was first decided. The recent confirmation hearings dramatically demonstrated this: From the beginning, Roe was the number-one reason for the opposition to Justice Brett Kavanaugh, because abortion activists understand Roe to be fragile and unsettled.

It is unsettled today for numerous reasons, but three stand out: the extreme scope of the court’s nationwide legalization of abortion; the inherent defects that the Supreme Court recklessly built into Roe; and the persistent pressure of the cause for life year after year, which has aggravated Roe’s contradictions.

Roe’s abrupt legalization of abortion throughout America ignited the campaign against it — but successfully overturning Roe will require understanding and emphasizing the defects of the decision. Many of these defects are hidden below the surface of the court’s opinions in Roe and the important companion case, Doe v. Bolton, which was decided the same day. Neither Roe nor Doe had any trial or evidentiary record about abortion, its risks or its implications. Without such evidence, the justices floundered in their understanding of basic scientific and legal questions, and stumbled into a number of egregious mistakes:

1. The justices ignored our legal heritage of protecting the lives of developing human beings to the extent allowed by medical knowledge. As one of the original Supreme Court justices, James Wilson, wrote in the 1790s: “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. … By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

The justices in 1973 instead adopted the spurious “history” offered by Cyril Means, the general counsel for the National Association for the Repeal of Abortion Laws (NARAL), and invented a “right” to abortion.

2. The justices overlooked the growing science of fetology that was underway. Well-documented briefs were filed showing the growing medical data on fetal development. Dorothy Beasley, the attorney representing Georgia in Doe v. Bolton, told the justices in December 1971 that “the State has a greater obligation to protect that fetal life” than ever before. “There are more methods now that can be used to protect it,” she added, “including blood transfusions and surgery while it’s still in the womb.”

Unfortunately, Justice Harry Blackmun’s majority opinion in Roe casually dismissed the science and “the well-known facts of fetal development,” and instead stated, “We need not resolve the difficult question of when life begins.”

3. Roe had no foundation in precedent, as numerous legal scholars have recognized. In fact, Justice Blackmun fairly admitted this in his opinion. He declared that a series of “privacy” cases was broad enough to encompass abortion, but a few pages later he conceded that the woman “carries an embryo and, later, a fetus,” making abortion “inherently different” from all those earlier privacy cases.

4. The justices relied on falsehoods about the relative safety of abortion. Anxious for anything that would support their decision, they cited unreliable data about abortion safety from Soviet Bloc countries dating back to the 1950s. Despite the lack of evidence, the justices adopted a mantra — that abortion was safer than childbirth — and that premise shaped major planks of Roe and Doe, including broad deference to abortion providers.

5. The justices ignored a critical distinction about personhood: Whether or not he or she was recognized as a constitutional “person” and specifically protected against the states by the Fourteenth Amendment, the unborn child was recognized as a human being and increasingly protected against private action by property, tort and criminal law.

Through the briefs and oral arguments, the justices were informed about legal developments that protected the unborn child from conception. As one federal court wrote in 1946, “From the viewpoint of the civil law and the law of property, a child en ventre sa mere [in the mother’s womb] is not only regarded as a human being but as such from the moment of conception — which it is in fact.”

6. The justices arbitrarily chose fetal viability as the measure of legal protection, despite the fact that viability was not historically the standard of fetal protection. Listen to the original oral arguments in Roe and Doe at www.oyez.org: The word “viability” was never mentioned once in four hours of argument. No party or organization urged the court to extend the abortion “right” to viability or beyond.

7. The companion case of Doe v. Bolton, decided with Roe, radically expanded the “abortion right” throughout pregnancy. The court required the 50 states to allow abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” At the same time, it defined the “health” exception as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” Thus, Roe and Doe set the United States apart as 1 of only 4 nations (of the nearly 200 across the globe) that allows abortion for any reason after fetal viability, and 1 of 7 nations that allows abortion for any reason after 20 weeks.

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In the years since Roe v. Wade, obstetric ultrasound machines and other medical and technological developments have permanently changed public understanding about fetal development. Year after year, states have enacted more comprehensive legal protection of the unborn, from conception, in prenatal injury law, wrongful death law and fetal homicide law.

There is likewise an increasing public awareness that abortion is bad for both mother and child. A growing body of international medical data — dozens of studies on women from dozens of countries — has found an increased risk of pre-term birth in subsequent pregnancies, mental trauma and breast cancer after abortion.

Abortion is an elective procedure, and in the vast majority of cases it is chosen for socioeconomic reasons. It is not “health care.” Unsafe, a 2016 report by Americans United for Life, documented that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016 (see unsafereport.org).

Nonetheless, there have been three major obstacles to toppling the Roe decision: the inherent difficulty in our constitutional system of overturning any Supreme Court decision; the power of the abortion lobby — funded by dozens of foundations — determined to maintain Roe at all costs; and the notion, popular in the academy and widely disseminated by the media, that women need abortion for social and economic advancement.

In 1992, in Planned Parenthood v. Casey, a majority of the court abandoned the false historical rationale for abortion in Roe but replaced it with the claim that American women need abortion for equal opportunity in society (“reliance interests”). But that claim, too, was flimsy, and factual and legal changes are challenging the court’s assumptions.

Now, for the first time in a quarter century, the court does not have a majority of justices who are invested in Roe as their legacy. Substantial momentum against this legacy has been built through the many efforts in the cause for life, including state legislation, public education and compassionate services to women and their children. As this momentum is reinforced by political victories and pro-life work, expectations are increasing that Roe’s days are numbered.


CLARKE D. FORSYTHE is senior counsel for Americans United for Life. He is the author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013) and A Draft Opinion Overruling Roe v. Wade, published by the Georgetown Journal of Law & Public Policy (September 2018).