Arrogant power

The most common pro-life push in state legislatures these days is to make abortion in almost every case illegal after 20 weeks, but did you know the Supreme Court’s infamous Roe v. Wade decision in January 1973 almost made abortion legal only for the first 12 weeks of pregnancy? Clarke Forsythe’s Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter, 2013) shows why the United States is one of only four countries (along with China, North Korea, and Canada) that allow abortion at any time before birth: It came about through the arrogance of judicial power.

Forsythe, a thoughtful attorney who has given his working life to the pro-life cause for nearly three decades, is obviously appalled that the justices originally agreed to hear Roe v. Wade as (1) a way to deal with procedural issues related to state criminal prosecutions, then (2) seized upon it to allow a constitutional “right” to abortion during the first trimester of pregnancy, then (3) arbitrarily expanded the “right” to 28 weeks (considered four decades ago the time of “viability,” when a born baby could survive), then (4) went all the way by having health of the mother include mental health (as defined by the mother and an abortionist). But Forsythe writes in measured prose, although he must have felt at times like screaming.

I hear a stifled argh on page 127, when Forsythe writes, “Viability was not an issue in the lower courts in the abortion cases. It was not an issue in the Supreme Court, either. The parties did not discuss viability in their briefs or urge the Justices to adopt viability as a standard. There was no mention of viability in the arguments, and it was not mentioned during the first conference of the Justices.”

Astoundingly, the justices started talking about viability only about one or two months before announcing the Roe v. Wade decision, a move the reserved Forsythe labels “careless.”

How about a stifled bleh on page 136, when Forsythe quotes a Dec. 4, 1972, memo from Justice Harry Blackmun to Justice Lewis Powell: “I have no particular commitment to the point marking the end of the first trimester as contrasted with some other point, such as quickening and viability. I selected the earliest of the three because medical statistics and the statistical writings seemed to focus on it. … I thought it might be easier for some of the Justices than a designated later point. I could go along with viability if it could command a court. … I have the impression that many physicians are concerned about facilities and, for example, the need for hospitalization.”

As athletes know, there is no “I” in “team,” but Blackmun’s note had five “I”s, three more than are in “U.S. Constitution,” which Blackmun largely ignored.

Page 182 may have yielded an eek, as Forsythe quotes advice given to pro-abortion lawyer Roy Lucas on how to convince justices that falsehoods about the history of abortion are actually the truth: “[F]udge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.”

And Forsythe may have uttered a hearty harrumph when writing, on page 218, “Even if five Justices were committed to creating a right to abortion, the Justices could have written a more narrow decision that struck down the Texas statute but left the Georgia regulations in effect. That would have been safer, especially when the Justices had no facts about the impact of the Georgia regulations, and knew they had no facts. … Instead, the Justices threw caution to the winds and issued a sweeping decision.”

The italics are Forsythe’s, and that’s as emotional as his writing gets. Abuse of Discretion shows that justices did not know the history of abortion, the common-law traditions, the medical data, or much of anything that you’d hope those given such authority would at least study. Their intellectual laziness is tragic, and embarrassing. I hope law students today (maybe Supreme Court clerks tomorrow) will read Forsythe’s combination of sensational fact and understated prose.