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An Abuse of Discretion, An Issue Unresolved

Clark Forsythe dissects 'Roe' and 'Doe.'

By 1.21.14

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This week’s annual March for Life in Washington, Obama’s HHS mandate, and the ongoing battle over state regulation of abortion clinics offer evidence that the matter of abortion remains unresolved in the body politic. Even liberal feminist Justice Ruth Bader Ginsburg has expressed regret over Roe v. Wade, claiming “it seemed to have stopped the momentum on the side of change.” Whether change is going her way is an interesting question.

True, no deeply ethical or moral issue is ever truly “resolved,” only returned to and debated over from age to age, generation to generation. Yet, as Clarke Forsythe argues persuasively in his authoritative book, Abuse of Discretion: The Inside Story of Roe v. Wade, the abuse of discretion (abuses, really) by the Supreme Court in the abortion cases, including Roe’s consequential, often overlooked twin, Doe v. Bolton, has stymied any legitimate, political accommodation on this hotly contested issue.

“The abortion issue is unresolved because the American people cannot resolve it in any meaningful way,” concludes Clarke in his well-researched book. “They can talk about it. But — subject to federal court oversight — Americans can enact regulations only around the margins of an abortion right that extends for any reason throughout pregnancy. That fact alone explains why Roe (and Doe) have been so controversial.”

The empirical and scientific ground under the abortion cases began to shift even before they were decided on January 22, 1973. Life magazine’s cover for April 30, 1965, displayed a famous picture of an unborn child. On September 10 it featured an earlier ultrasound image of a baby’s head in the womb “projected on the screen by ultrasonic waves.” In 1970 early papers on the new technology were being published in some medical journals on prenatal diagnosis techniques. “But in 1971 and 1972,” writes Forsythe, “the dominance of the sexual revolution and population control heavily favored abortion ‘reform’ of some kind, and ultrasound technology did not arrive on the market until three years after Roe.

The unborn never had their day in court because there really was no trial or evidence adduced in the lower courts from which the twin abortion decisions were appealed. Everything was decided on briefs of the parties and the a priori policy assumptions of the Justices sitting at the time.

“It was never revealed to the Justices that, before the hearing of the case in the district court in Atlanta [in the Doe case], Mary Doe (Sandra Cano) voluntarily relented from having an abortion once she felt her baby kick, and she communicated that to her counsel, Margie Pitts Hames,” report Forsythe. Moreover, even Justice Blackmun conceded later that the Supreme Court made a mistake in accepting the abortion cases for review because at least some of the Justices thought they were dealing with a narrow procedural matter, i.e., the basis on which a federal court can intervene in a state criminal proceeding.

Notwithstanding the common, often willful misrepresentation that the abortion cases only prohibit state regulation prior to “viability” (this latter term appears to be a creation of one of Justice Blackmun’s law clerks), in truth, Roe and Doe place the United States in the unenviable position “as one of approximately nine countries that allow abortion after fourteen weeks and one of only four nations (with Canada, China, and North Korea) that allows abortion for any reason after fetal viability,” says Forsythe.

In an otherwise fair and accurate review of Abuse of Discretion, liberal law professor Jeffrey Rosen (he is legal affairs editor at the New Republic), writing in the Wall Street Journal, expresses surprise that Forsythe omits any reference to “the transformative impact of Gonzales v. Carhart, the 2007 decision of the Supreme Court upholding the federal partial-birth abortion law, which doesn’t contain a health exception and allows restrictions on abortion both before and after fetal viability,” which “calls into question Mr. Forsythe’s claim that the U.S. today is one of only four nations allowing abortion ‘for any reason after fetal viability.’”

I have previously described the Court’s partial-birth decision here. The case was written by Justice Kennedy with excruciating detail on this barbarous procedure which even he, a defender of abortion rights, could not stomach. The practice is on the frontier between abortion and infanticide. Personally, I share the view of the late Senator Daniel Patrick Moynihan (D-NY) that this practice is “too close to infanticide” to be considered a kind of abortion. So Professor Rosen is being a tad tendentious. Partial-birth abortion is the exception that proves the rule. The fact is America has a regime of abortion on demand, for all nine months of pregnancy, for just about any reason imaginable, up to the moment of birth, an entirely arbitrary point in the lifecycle of a human being. This is so because, as Clarke Forsythe emphasizes throughout this book, everyone either ignores or obfuscates the expanded definition of “health” in Doe which invalidated a more liberal law in Georgia than obtained in Texas where Roe originated. Forsythe explains:

As Harvard Law Professor Mary Ann Glendon has observed, “The United States is alone… in forbidding any state regulation of abortion for the sake of preserving the fetus until viability…It is alone, too, in that even after viability, it does not require regulation to protect the fetus. If a state does choose to try to preserve the life of the fetus after viability, it must observe the ruling in Roe v. Wade that state regulation may not interfere with abortions which are ‘necessary to preserve the life or health of the mother.’ ‘Health,’ in Roe’s companion case of Doe v. Bolton, is broadly understood as related to ‘all factors… relevant to the well-being of the patient.’”

In other words, psychological and mental health, educational plans, inconvenience — just about any conceivable reason — justifies an abortion in the view of the highest court of the land.

I still recommend Rosen’s review as an excellent introduction to Forsythe’s book, which addresses many of the legal and social issues which are beyond the scope of this posting.

Forsythe paints a dark picture of the subversion of fair and honest judging driven by result-oriented Justices — Blackmun, Douglas, and Brennan most energetically — without any factual record or underlying trial in which facts and witnesses can be subjected to an adversary process and cross-examination. This was a “done deal” from beginning to end. Even the word “viability” was never mentioned in the four hours of oral argument of the cases before the High Court. That was grafted into American law later in chambers.

Clarke Forsythe is a lawyer’s lawyer, melding solid legal scholarship with his experience in the rough and tumble of an advocacy practice. He is Senior Counsel at Americans United for Life (AUL) and has argued cases before federal and state appellate courts, served as co-counsel in cases before the U.S. Supreme Court, and testified before Congress and many state legislatures. He has authored a worthy successor to John Noonan’s classic, A Private Choice: Abortion in America in the Seventies (1979).

Both books are excellent exhumations of the skeletons of judicial imperialism, overreach, and hubris. Forsythe has the advantage of all the private papers of the Justices and decades more experience with the ravages of our judicially imposed abortion culture such as partial-birth abortion and the likes of Kermit Gosnell. Any lawyer or interested layperson will benefit from this deep dive into the federal judge-made abortion regime in America.

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About the Author

G. Tracy Mehan III served at the U.S. Environmental Protection Agency in the administrations of both Presidents Bush. He is a consultant in Arlington, Virginia, and an adjunct professor at George Mason University School of Law.