In Abuse of Discretion, the latest book lobbed at the unsteady edifice of Roe v. Wade, Clarke D. Forsythe turns to the Supreme Court justices’ private notes and memos from 1971 to 1973 in order to “solve the puzzle” of the court’s legalization of abortion on demand. The memos reveal, for instance, how Justices Douglas and Brennan conspired to accept Roe and Doecases without any factual record “addressing the difficult legal, historical, or medical questions involving abortion”to determine whether there was a constitutional right to an abortion. Private memos to Justice Harry Blackmun show how Brennan, Douglas, and Marshall pressured him to use Roe to read a right to abortion into the Constitution.
Not only did the court decide the most controversial judicial ruling of modern times with no recourse to any factual record, but it also made a number of mistakes. Forsythe tallies them: The court misinterpreted the judicial premise for the common law protection of fetal life stretching back hundreds of years, relied on articles that provided faulty legal analysis of abortion law, and cited doctored statistics on criminal abortions and abortion-related deaths.
Forsythe provides a fascinating discussion of how the justices concocted a narrow view of fetal viability in order to expand the “abortion right”a discussion even this veteran of the abortion war found particularly new and insightful. The pro-Roe justices initially envisioned a right to an abortion only “within some limited time after conception,” but later seized on a cursory reference to viability in a Connecticut court decision that struck down that state’s law prohibiting abortion. Blackmun’s draft opinion permitted abortions “only” through the first twelve weeks! Pressured by Powell, he extended the “abortion right” to the point of viability. And so the decision drew on an odd personal theory of a Connecticut justicea theory the leading authority on tort law had shown to be faulty.
The book’s criticisms of Roe provide a challenge to those who seek to undo it. Forsythe points out that rulings like Planned Parenthood v. Casey justify abortion as being good for women. He demonstrates, however, that Roe failed to deliver what it promisedthe improvement of women’s lives. He believes it is this failure in “practical results,” and not the personhood of the fetus, that provides the best argument for overturning Roe.