Abuse of Discretion, The Inside Story of Roe v. Wade, by Clarke D. Forsythe (Encounter Books 2013).
Reviewed by David A. Shaneyfelt
We’ve grown accustomed over the years to describing Roe v. Wade as a “travesty of justice.” And plenty of commentators, including those who are in favor of abortion, have affirmed this description, too. But the description has become cliché and deserves renewed attention as more and more facts are brought to light that explain exactly why the decision is a travesty of justice. Facts don’t lie, even if lies aim to be based on them, as Roe surely is.
Clarke Forsythe, Senior Counsel to Americans United for Life, has done the world invaluable good. He has taken the effort to compile the vast number of facts that led seven members of the United States Supreme Court to form the legal opinion that became Roe. Much of his information comes from the private papers of eight of the nine justices, some of which have only been released in 2012. (Only Chief Justice Warren Burger’s papers remain private.)
Much has been written on the impact of Roe, how it struck down all abortion laws of all fifty states, how it barred public health officials from enforcing health and safety regulations in the first trimester, how it gave federal courts continuing oversight of any new regulation affecting it, and how, on the world stage, it isolated the United States as one of only four nations (along with Canada, China, and North Korea) to allow abortion for any reason after fetal viability. Forsythe covers this, too.
Less well known are those facts that led to the ill-fated decision, and Forsythe’s book is filled with them. For instance, Forsythe guides the reader carefully through the legal process by which the case came to be heard, a process which, I guarantee, will make one’s blood go even colder than that of your average litigator.
The nine justices of the Court at the time (two would be replaced by the time of the decision) thought they were hearing a case involving federal criminal procedure, for which such issues as “standing” and “case and controversy” would be key. Federal courts are obsessed with these aspects of procedural law—“standing” (who can bring a suit to challenge a law) and “case and controversy” (is there any real conflict between the parties that can clarify the constitutional issues). Moreover, appellate courts are almost never supposed to be “finders of fact.” That role is left to the district courts who are given so much deference that the factual findings they make will not be reversed unless an “abuse of discretion” is shown (a phrase which Forsythe stylishly uses to caption his book).
Roe came to the Supreme Court with no factual record. The record consisted of a complaint, an affidavit, and motions to dismiss that addressed legal, not factual issues. No factual hearings were conducted. No witnesses were called or cross-examined. And then the case was appealed directly to the Supreme Court without any intermediate appellate review. Accordingly, the Supreme Court had no findings of fact regarding the medical or historical aspects of abortion.
Anticipating the Justices move, Roe’s attorneys created a 477-page “supplemental appendix” that included some sixty papers addressing the medical and sociological issues of abortion. Many of these had neither been published nor peer-reviewed. Of nine medical articles they submitted, none included the claim that “abortion was safer than childbirth,” but that did not stop the lawyers from making this claim. The claim was first made in 1961 by abortion advocate Christopher Tietze in the Journal of the American Medical Association, and later repeated without verification by media outlets and abortion advocates through the 1960s. But the claim had never been verified by the time of Roe (and still has not been verified today).
While the attorneys for Texas and Georgia contested this claim, none of the Justices did, and thus the mantra became accepted as fact as Blackmun worked that phrase into his opinion. Indeed, these and other critical “facts” worked their way into the opinion, without even the benefit of “judicial notice”—a procedure courts invoke when accepting public facts as admissible evidence.
But Justices Blackmun, Douglas, Stewart, and Brennan seemed determined to assume the role of fact-finders on the medical and sociological issues of abortion, as their draft opinions and internal memos reflect. Justice Brennan, in fact, was particularly devious. He had a practice known as “burying bones” in earlier opinions. He would secrete some seemingly innocuous phrase as gratuitous dicta into one opinion that could later be dug up and put to use down the road in another opinion. Brennan did this for Roe’s benefit by gratuitously adding the phrase “right of privacy” in a 1971 case (Eisenstadt v. Baird), concerning a Massachusetts law limiting sale of contraceptives to unmarried persons. Thus, Roe never invented any “right of privacy”—“it was precedential, because it was plainly there in our earlier decision, didn’t you see it?”
Blackmun, Brennan, and Douglas skillfully maneuvered the case past the federal procedural issues, and past two oral arguments and through the arrival of two intervening justices (Powell and Rehnquist). The case proceeded to the merits and thus the mantra (“abortion is safer than childbirth”) worked its way into the opinion like some kind of Jedi mind-reading process.
But that’s my phrase, not Forsythe’s. Forsythe soberly, carefully exposits facts and leaves readers to draw their conclusions. Indeed, his book is a remarkable exercise of restraint, devoid of rhetoric or polemic. One cannot read these facts without concluding that something very terrible went wrong in the American justice system.
Oddly, in the end, I was left with a strange feeling of encouragement in two respects. First, a decision so wrongly decided cannot stand, and we see signs of that in the modern abortion cases, where the majorities justify Roe based solely on its precedential value, not on its merits. Second, a great weight of evidence has now amassed that contradicts Roe’s evidentiary foundations. Facts are stubborn things, as they say, and they will crush Roe’s foundation eventually.
I confess I had great difficulty reading the book with restraint. I imagine that was exactly the purpose Forsythe hopes to achieve in his readers. His book must be read to remind us why we are committed to overturning this travesty of justice.
[David A. Shaneyfelt is a recent addition to Life Legal’s Board of Directors. A graduate of Thomas Aquinas College and Willamette College of Law, he has spent much of his career working in complex civil litigation in state and federal courts across the country. He presently practices at The Alvarez Firm, in Calabasas, California, along with fellow alumni Justin Alvarez and LLDF Co-Founder, Andy Zepeda.
For more information about Clark Forsythe’s book, please see Encounter Books web site: Abuse of Discretion Twitter tag: #AbuseOfDiscretion.]
This article originally appeared in Lifeline (Summer 2014).