on October 14, 2013
Roe v. Wade is easily one of the most controversial Supreme Court decisions in U.S. history. After it was issued in January 1973, it sparked a firestorm of criticism from not only pro-lifers, but also prominent constitutional law scholars sympathetic to legal abortion. While plenty has been written about the decision itself, there has been relatively little informed commentary about the process, the oral arguments and the sources and evidence the justices used. "Abuse of Discretion" by Americans United for Life's general counsel, Clarke Forsythe, nicely fills that void. Mr. Forsythe's original research on the private papers of Justice Harry Blackmun provides some important new insights. His depiction of the Roe v. Wade decision reveals numerous flaws that should disturb not only pro-lifers, but anyone who care about sound jurisprudence.
Indeed, the arguments that pro-lifers make against the Roe v. Wade decision center on the fact that neither abortion rights nor the right to privacy is explicitly mentioned in the U.S. Constitution. What is unique about Mr. Forsythe's book is that he goes beyond those arguments and tries to engage people with a more liberal view of jurisprudence. Contemporary judicial decisions are often influenced by public opinion, academic research, and ideas and judgments shaped by the American experience. However, Mr. Forsythe persuasively makes the case that even under these more liberal standards, Roe v. Wade is still deeply flawed. That is partly because the public health data and the historical information that Justice Blackmun relied on in his majority opinion were often incorrect, incomplete or misleading.
For instance, Blackmun's majority opinion cites evidence that there was no common-law prohibition against abortion when the U.S. Constitution was adopted and the purpose of subsequent anti-abortion legislation was to protect the mother -- not the child. However, Blackmun's primary source was a series of articles written by Cyril Means, the general counsel to the National Abortion Rights Action League (NARAL). Subsequent legal and historical scholarship has refuted Means` claims. Additionally, public health research that purportedly showed that abortion was safer than childbirth played a prominent role in Blackmun's opinion. However, of the seven studies that Blackmun cited, none was peer reviewed and none even considered long-term health risks involved with legal abortion.
Mr. Forsythe also astutely points out a number of procedural problems with the Roe v. Wade decision. For instance, there was no clear trial record of factual evidence. Additionally, much of the time devoted to oral arguments was spent on procedural and jurisdictional questions. Very little time was spent on the constitutional justification for a right to an abortion. Furthermore, the concept of viability was never once even mentioned during the oral arguments. Mr. Forsythe presents correspondence between Justices Blackmun, Thurgood Marshall and Lewis Powell showing that their decision to expand the abortion right to viability was not based on any legal argument, but instead because it would mean more access to abortion.
This expanded access to abortion has had a profoundly negative impact on public health. Mr. Forsythe details the numerous abortion clinic scandals that have come to light since 1973. He also ably summarizes academic research that shows that abortion is linked to an increased risk of breast cancer and a higher incidence of various psychological problems. Furthermore, contrary to the claims of abortion proponents, expanded access to abortion has offered no societal benefits. There is no evidence that Roe v. Wade significantly reduced maternal mortality, child abuse, spousal abuse, poverty or the out-of-wedlock birthrate. Furthermore, research on the increased professional success of women never mentions expanded access to abortion as a significant factor.
Unlike many Supreme Court decisions dealing with controversial issues, Roe v. Wade has never gained widespread public acceptance. Most Americans simply do not support abortion on demand. Mr. Forsythe has written a book that raises serious concerns not only about the outcome of Roe v. Wade, but also the process that led to the decision. Instead of relying on the usual conservative talking points, Mr. Forsythe conducted original research that reveals new information about significant problems with both the legal reasoning behind the decision and the evidence cited in the majority opinion.
"Abuse of Discretion" should engage readers outside the pro-life movement by making a compelling argument that even under liberal standards of jurisprudence, Roe v. Wade is a deeply flawed decision. All in all, by carefully detailing the problematic process behind Roe v. Wade and its negative consequences, Mr. Forsythe has provided a fine service for his readers.
Review appeared in The Washington Times October 13, 2013
on November 15, 2013
“Abuse of Discretion” is an eye-opening look into the mechanism of our Judicial Branch of government. It is a well written account that does not require a law degree to follow along. It begins by exposing the surprising mistakes made by the Justices and moves to demonstrating the unintended consequences of the decision. I am somewhat embarrassed to admit that I lived though that very controversial period of time and was unaware of most of what Mr. Forsythe brings to light. Regardless of what side of the abortion issue you may find yourself on, the tactics of the Supreme Court should cause concern as they reveal more of an abuse of power than they do a safeguard to assure that something is constitutional.
on October 27, 2013
Although I am not a lawyer, I believe Abuse of Discretion excellently explains why the Supreme Court's Major Decision(s) in this case have been legislative in nature and should be reviewed. We have 3 branches of government to balance the government's powers. To Legislate is not a power of the Supreme Court. I have given friends and business associates copies. Needless to say, the life issues specifically related to this book are extremely important. The issue of Abuse of Power by the Executive, Legislative, or Judicial Branch of our US Government must be constantly monitored and rebalanced. It is extremely important for the Supreme Court to Rebalance the decision of Roe vs Wade as that decision relates to human lives. People(human lives) make up our US Citizenship. We must protect our selves and our great Country. Hopefully, those who I have given Abuse of Discression and will work to get the power rebalanced in Washington starting with the Supreme Court. Let's not forget to keep our eye on the Executive and Judicial Branches.
on September 24, 2013
This book contains never-before-published content from the Supreme Court justices' personal journals in an intelligent and fascinating account of the process that led to the earth-shattering decision of Roe v Wade. "Legislating from the bench" was never so callous, so grossly and blatantly ignorant of the facts than in this decision, as Forsythe demonstrates in his perceptive analysis of the insider documents from Roe.
As one who has grown tired of the old rhetoric surrounding Roe and the pro-life movement, I find Forsythe's intellectual depth and new information refreshing. As a 20-something, it appealed to me because rather than throwing graphic photos, stale aphorisms, and sketchy statistics at me, it gave me the facts, plus Forsythe's keen exposition.
If abortion isn't your issue but you're interested in the law, this is also amazing as an account of judicial history. Roe set a precedent for the Supreme Court that has affected privacy laws and abortion rights cases for more than four centuries--yet the case itself was decided against the facts and according to prejudiced motives. This is a must-read for any law enthusiast as well as the average concerned citizen.
on September 29, 2013
Forsythe takes you step by step through Roe and her companion case, Doe. In addition to granting us a rare look into the behind the scenes aspects of the Court, he provides substantial and compelling legal analysis showing where the Court went wrong in it's decision. As a law student dedicated to overturning Roe, I found this book to be extremely valuable as it is clear, concise and well thought out. Great job by a great legal mind!
on October 25, 2013
So much information, I use my highlighter on every chapter. Very well documated
and easy to read, and an insight on the way the Supreme Court works. The judges
are just people and it is shocking to see how their personal opinions affect their
"law making," instead of following the Constitution. Such a serious matter, the killing of preborn citizens, and the damage to the parents, the family and society.
On January 22, 1973, the Supreme Court of the United States handed down decisions in two abortion-related cases, Roe v. Wade and Doe v. Bolton. The effect of those decisions was immediate and radical. State laws prohibiting or restricting abortion were struck down, and a right to abortion at any time for any reason was established. The United States is now one of only ten nations (out of 195) that permit abortion after 14 weeks, and one of only four that permit it for any reason after viability.
Clarke D. Forsythe argues that the Supreme Court reached the wrong decision in both cases in his new book, Abuse of Discretion. Forsythe is Senior Counsel at Americans United for Life, and this book is the culmination of over 25 years of research into the legal, medical, and political aspects of America’s abortion debate. A unique feature of this book is the extensive use of archival material from the papers of eight of the nine justices who decided the case, some of which has only recently become available to researchers.
Forsythe argues that the Supreme Court’s hearing of Roe and Doe was mistaken from the start. On February 23, 1971, the Court handed down its decision in Younger v. Harris, which limited the power of federal courts to interfere with pending state criminal investigations. The Justices voted to hear Roe and Doe on April 22 in order to determine whether, as a matter of procedure, Younger could be applied to state criminal prosecutions for abortion. The first round of oral arguments took place on December 13, when the Court had two vacancies. A second round occurred on October 11, 1972, after those vacancies had been filled.
Because the question before the Court was procedural, rather than substantive—that is, whether a federal court had the jurisdiction to intervene in state prosecutions for abortion rather than whether abortion was a fundamental right—the cases came before the Justices with no trial or factual records. And most of the oral arguments dealt with jurisdiction rather than rights. Consequently, in deciding the cases, the Justices were flying blind.
This is evident in the majority’s reliance on Cyril Means’ arguments—long since refuted—that abortion was a liberty under English common law, and that growing American restrictions on abortion in the 19th century were meant to protect the mother, not the child in the womb. It is evident in their misconstrual of the common law’s use of “born alive” as a gestational rather than evidentiary term. It is evident in their taking “judicial notice” of factual assertions—questionable even then—about the high death rates involved with illegal “back alley” abortions, and the comparative safety of legal induced abortion to natural childbirth. And it is evident in importance Roe placed on “viability,” even though the concept was absent from the Texas and Georgia laws under consideration, not to mention its absence from any state law at the time.
To put the matter simply, the majority decisions in both cases invented a right to abortion that misconstrued American legal history, rested on unfactual “facts,” and bulldozed the right of the people through their legislative representatives to craft laws according to their fundamental values. The combined decisions of Roe and Doe were more radical than any state laws that had been acted in the late 60s, even the “liberal” ones. It is sometimes thought, on the basis of Roe, that states can limit access to abortion after viability. But the “maternal health” exemption outlined in Doe makes the right to abortion so absolute that even public health requirements for abortion facilities were invalidated by federal courts after 1973. Roe v. Wade and Doe v. Bolton created a constitutionally guaranteed right to a surgical procedure largely free of regulatory oversight. Kermit Gosnell’s abortion clinic—abattoir, really—demonstrates that absent common-sense regulations, “back alley” abortions can move inside otherwise legal clinics.
American society now faces an ongoing “culture war” over abortion that is incapable of legislative resolution, precisely because the Supreme Court has taken the matter out of citizens’ hands. Where the Court has left power in citizens’ hands on other issues, the people have crafted pragmatic, moderating solutions that, while not necessarily satisfying partisans on either side, at least reflect the “vital center” of American opinion. The center does not hold in America because the Supreme Court will not let it.
For exposing the hollow legal reasoning and perverse effects of Roe v. Wade and Doe v. Bolton, Clarke D. Forsythe should be congratulated, and his book widely read.
on January 3, 2014
This is book a little bit of a rough read and the author repeats the same points several times in the book and references the same bit of information too often. However the wealth of information presented here and its comprehensive nature is amazing. Long had I believed that Roe v Wade and Doe v Bolton were evil decision and I knew they were lawless in the sense the decision had no basis in the Constitution but the mendacity of the decisions had escaped me. From the very beginning out right deception and stupidity played crucial roles in the decisions and in fact determined the outcome.
Even if you are supporter of the Roe and Doe after reading this book you will have to admit they were not decided well and the Supreme Court Justices that decided probably should have been impeached for incompetence after making these decisions. Everything the Supreme Court wanted to accomplish with the decision was not accomplished and the impact of the decision was nothing like the Justices expected. Every single part of the opinions written by Blackmun were based on falsehoods and in most instances were complete fabrications and every assumption made by the justices about society and the state of American culture also proved completely wrong. Several justices even thought the States would be easily able to write regulations for abortion practices after their decisions but outlawed regulations in Doe. It seems they were not even aware of what they were doing themselves.
This is an eye-opening book after reading it I can't imagine even an honest abortion supporter believing that Roe and Doe were well decided and deserve to stand as law of the land after reading this book.
You can not consider yourself well informed about abortion in the United States without reading this book. I highly recommend it to anyone interested in the abortion debate and how that issue drives so much of the culture wars in the US.
on April 27, 2015
This is a very good book that will open your eyes to many truths revolving around the 1973 decision that has turned our country on its head. The author used the papers of several Justices that have been now made public, plus hundreds of other source materials to demonstrate that things are not as they seem (then or now). There are 101 pages of footnotes to back up the author's facts included in this 477 page book. The topic is extremely important considering that over 164 million female babies have been killed (aborted) worldwide since the 1970s with more than 50,000,000 babies aborted (both sexes) in the U.S. alone since 1973. The author has demonstrated that some of the Supreme Court Justices had already made their decision on this case BEFORE the evidence was presented, briefs filed, and hearings had been held. A couple of the Justices went out of their way (based on their own notes) to figure out how to frame their written decisions so as to appear to be supported by the medical facts and the law. The author proves beyond all doubt that neither the medical evidence nor the law supported their decision. He also quoted a number of abortion advocates who have admitted lying in order to further their cause.
on May 1, 2016
If you ever wondered how we as a country went from protecting and defending life to creating an abortion right, Forsythe's 'Abuse of Discretion' is THE text. If you think abortion is legal in the United States only until the end of the first trimester, you are wrong. If you think abortion is legal in the United States only until viability, you are wrong. These are the common misconceptions of how Roe v. Wade and Doe v. Bolton made the United States part of a limited club of nations allowing abortions so long as the 'health' of the mother is affected (or as more commonly referred to as 'abortion on demand') The limited club of nations that the Unites States joined is Canada, North Korea, and China. Think about that. These are the countries whose abortion laws we have matched.
Become informed about the travesty that is Roe v Wade. The Supreme Court removed the debate of abortion out of the hands of the people and their representatives by mandating a one-size fits all right. Roe v. Wade was originally a case about jurisdictional issues, not about arguing a case for a right to an abortion. It was the justices of the United States Supreme Court that took these cases and created a right out of whole cloth. Sound familiar to a recent US Supreme Court ruling?