Roe v. Wade Was an “Abuse of Discretion,” Exercise in Raw Judicial Power

Opinion   Steven H. Aden   Oct 30, 2013   |   9:37AM    Washington, DC

Scholars, activists, and others who think they know all they need to know about the Supreme Court’s landmark abortion case Roe v. Wade should pick up and read Clarke Forsythe’s Abuse of Discretion.

This masterful and very readable volume offers many surprises gleaned from the innumerable hours Forsythe spent reading in the justices’ personal papers at the Library of Congress, as well as personal interviews he conducted with law clerks and others who were involved in the decision.

In some ways, we already know enough to agree with scholars across the political spectrum that Roe was so transparently results-oriented as to prove a lasting embarrassment to the court.

Yale’s John Hart Ely, for instance, wrote shortly after the Supreme Court announced Roe that it was “a very bad decision…. [B]ad because it is bad constitutional law, or rather it is not constitutional law and gives almost no sense of an obligation to try to be.” It is arguably the most ignominious example of what University of San Diego law professor Steven Smith called “the constitution of Babel” —an unintelligible regime in which “the only essential skill needed to understand the Supreme Court’s constitutional decisions is the ability to count to five.”

And there have been thorough treatments of Roe and abortion law before, both from a pro-abortion perspective (David J. Garrow’s Liberty and Sexuality is the magnum opus) and a pro-life view (Joseph Dellapenna’s Dispelling the Myths of Abortion History, for example). What Forsythe adds to the reader’s understanding is the illumination he shines on the sheer unadorned political nature of the decision.

In stark relief we see the determination of just four justices—William O. Douglas, William Brennan, Potter Stewart, and Thurgood Marshall—to utilize the nascent law of “reproductive freedom” to vault over the rest of the court and announce a virtually illimitable right to abortion. The right they declared in Roe was so untrammeled that the court had to backpedal for the next decade just to affirm that Roe permitted the states to regulate abortion as the serious medical procedure it is.

Perhaps the most galling discovery for Forsythe’s readers is the source of Roe’s “viability” concept, which in 1992 became the substance of the Supreme Court’s abortion jurisprudence in Planned Parenthood v. Casey as the justices jettisoned Roe’s “trimester framework” as unworkable. The concept did not come from any of the parties’ briefs, nor was it raised by any members of the court at oral argument. Rather, it had its genesis in a legal memo that one of Justice Blackmun’s law clerks wrote.

During the summer of 1972, when the Supreme Court was between two sessions and preparing for a re-argument of the abortion cases, Blackmun was researching abortion in the library of the Mayo Clinic in Rochester, Minn., where he had served as general counsel. Back in Washington, his clerk penned this suggestion:

I have written in, essentially, a limitation of the right [to abortion] depending on the time during pregnancy when the abortion is proposed to be performed. I have chosen the point of viability for this “turning point” (when state interests become compelling) for several reasons….”

Several months later, Blackmun had incorporated “viability” into his draft opinion and used the concept to extend the declared “right” to abortion through the end of the second trimester—the latest point in gestation when viability is deemed to be present.

But the narrative of Roe is much more than the sum of its parts. The four extreme justices took advantage of an opportunity presented by the absence of two justices from the court in 1971 to grant review in two cases, Roe and Doe v. Bolton, that presented simple questions of federal procedure and to bootstrap them into vehicles for declaring a fundamental right to abortion for any reason through all nine months of gestation. These cases had no trial court factual record whatsoever, just papers related to motions. These papers included the unsigned affidavit of Jane Roe, since revealed to have been Norma McCorvey and now a converted pro-life activist who says her lawyers “lied” about her situation. She calls her participation in the case “the biggest mistake of my life.”

Afraid that their ideological 4-3 majority on the court would be reversed if President Nixon’s appointments to the court took their seats between the 1972 and 1973 sessions, the liberal plurality tried to force the decision through in the 1972 session. Failing that, they secured a majority nonetheless with the alignment of Blackmun and maneuvered him into altering the basis for the decision shortly before it was issued. He changed it from a tiered approach that would have allowed states to proscribe abortion after the first trimester to a much broader decision ostensibly permitting abortion at “viability.”

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Finally, having established in Roe that states could theoretically ban abortion in the “third trimester,” they used the Doe case to hold that virtually any reason certified by a physician as related to the mother’s “wellbeing,” including “familial, physical, emotional, [and] psychological” reasons, justified abortion through all nine months. The era of “abortion on demand” was born. Perhaps it was the experience of being on the receiving end of the liberal plurality’s ideological bullying that led Justice Byron White to declare in dissent that Roe was “a exercise in raw judicial power.”

Undoubtedly, it will chagrin many readers of Forsythe’s book to learn that the court decision that ostensibly legitimized the termination of 56 million human lives since 1973 bore no more resemblance to principled judicial craftsmanship than the recent government shutdown debate on Capitol Hill bore to an earnest debate on stewardship of the public fisc. For those of who care deeply about abortion as far more than a political issue, the experience is much more visceral—like being kicked in the stomach repeatedly.

It’s tough medicine, but like most medicine, potentially salvific if there is still a possibility of redeeming constitutional law from the rubble of Babel.

LifeNews Note: Steve Aden is Senior counsel, and vice-president of the center for life with Alliance Defending Freedom.