Disclaimer: The author of this book is my father-in-law.
Clarke Forsythe’s Abuse of Discretion is an interesting and compelling examination of the Roe v. Wade and Doe v. Bolton Supreme Court decisions of 1973. Although its provocative title betrays an understandably distinct ideological bent given Forsythe’s role as Senior Counsel at Americans United for Life, the book is an exhaustively researched analysis of the decisions’ legal reasoning and social repercussions.
Mr. Forsythe’s 350-page work is divided into two major sections: “Mistakes” and “Unintended Consequences.” In the first half, he recounts the road that led to Roe, examining state and federal court decisions that affected the Justices’ discussions in 1973. He explores several factors that played a role in public perception of abortion leading up to the decision: popular fears of population control, the proliferation of birth control, the persistence of poor data on maternal deaths, the American Law Institute’s ‘Model Abortion Law,’ and the American Medical Association’s endorsement abortion’s legalization.
Of course, the unelected Supreme Court is not supposed to be concerned with opinion polling (even if more recent decisions suggests otherwise). What troubles Mr. Forsythe are the grave errors in legal reasoning and procedure that led to the Roe and Doe decisions. He raises significant questions about the factual record in both cases: in the lower courts, Roe and Doe introduced no evidence and neither involved any witnesses subjected to cross-examination. Furthermore, due to a 1970 federal statute, no intermediate appellate court conducted the usual screening for these evidentiary shortcomings.
The centerpiece of Mr. Forsythe’s legal argument is the Supreme Court’s “abrupt expansion to viability,” referring to the arbitrary line that the Court created in expanding abortion rights. Viability, the point at which an unborn child can survive outside of the womb, was thought in 1973 to occur around 28 weeks of gestation (children have actually survived after being born at less than 22 weeks). As it turns out, the Justices were particularly influenced by Judge Jon Newman, a brand new District Court Judge in Connecticut who, months after being sworn into office, struck down a state abortion statute and asserted without citing any law that “the state interest in protecting the life of a fetus capable of living outside the uterus could be shown to be more generally accepted.” Before long, the Justices were parroting this same line to each other and their clerks in internal memos. It is surprising that the Justices would take their cues from a District Court Judge, especially when the Supreme Courts of Texas, Wisconsin, New Jersey, Pennsylvania, Rhode Island, New Hampshire, Louisiana, Georgia, and Alabama had all implicitly questioned or explicitly rejected the doctrine of viability before the Supreme Court settled on it in 1973.
Of additional note is the Justices’ medical “data” to support their legal reasoning. Forsythe counts only seven medical articles used in the controlling Roe opinion. These seven sources include a leading abortionist’s personal report from a medical conference in Communist East Germany, two more of the same author’s non-peer reviewed articles (of 2 and 3 pages each), a report of the International Planned Parenthood Federation of London lacking any references to peer-reviewed data, a six-paragraph “letter to the editor” written by a Czech doctor, an article examining abortion in Soviet bloc countries, and a New York City report on the effects of a year-old abortion statute. The inclusion of these questionable sources is all the more troubling to Forsythe given what seems to be the Court’s willingness to overlook clear deficiencies. When a Supreme Court clerk, for example, authored a memo that drew Justice Blackmun’s attention to devastating problems with the New York City report, the Justice scrawled a stylistic correction over the memo’s topic sentence, but elaborated no further on its content.
In an analysis of the social consequences of Roe and Doe, the second part of Mr. Forsythe’s book walks away from legal reasoning and delves into issues of public health, women’s rights, and public perception. Starting with Roe and recounting a daisy-chain of court cases that have combined to eliminate most clinic regulations, Forsythe accuses the Justices of creating a public health vacuum through their ill-informed decision. A better tactic, he asserts, would have been for the Justices to strike down the Texas statute (in Roe) and leave intact the Georgia regulations (in Doe) making sure that abortions could be done with as little risk as possible to the woman.
Forsythe closes his work with an examination of Roe’s consequences in the area of women’s rights: “Has Roe solved the problems it was supposed to solve for women?” The author asserts that this is most emphatically not the case. Ironically, abortion amplifies the coercive power of uncommitted men in romantic relationships: Forsythe cites research by George Akerlof and Janet Yellen (yes, that Janet Yellen) that concludes “the legalization of abortion reduced women’s ability to withhold premarital sexual favors from men.” In another instance, a series of articles by the Washington Post suggested a link between abortion’s availability and domestic violence. In all, Forsythe suggests that abortion has had a negative impact on gender equality.
Mr. Forsythe makes a persuasive case. His book contains (by my count) 1,061 footnotes that occupy eighty-nine pages, followed by a twenty-one page bibliography. His analysis is thorough and he is unafraid of taking on opposing legal arguments, exploring the details of early English common law on abortion and explaining why arguments for legal distinctions between “quickening” and “viability” make no sense in the 21st century.
But the book is not just about legal arguments. It also explores the non-judicial aspects of the decision—the “unintended consequences”—and traces the social and medical impact of the Judicial edict. It is here, however, that I would lodge my first complaint about the book. Although unafraid of presenting both sides of a legal argument, Mr. Forsythe hardly makes room for opposing social science data. It is not difficult to imagine why: the potential for political taint in such data and the number of ways methodologies can be manipulated mean that social science debates can often devolve into accusations about the deficiencies of small-n studies, selections on the dependent variable, or inadequate control variables. These limitations notwithstanding, I think Forsythe’s argument could have benefited by a brief methodological analysis of some of the data that points to an overall societal benefit from abortion.
Forsythe’s legal background is quite apparent, as the book reads more like an amicus curiae brief than a George R.R. Martin novel: It will convince you, but it will not enthrall you. In most instances, though, Forsythe is conscious of his non-lawyer audience and is careful to explain the nuances of the English common law and the layers of the Federal court system in lay language. But on occasion (and perhaps inescapably), passages become a bit laden with jargon.
This was most apparent in his all-too-brief overview of the basic facts regarding both cases. A brief 3-5 page primer on such facts and the crucial points of the Justices’ decisions would have helped immensely. Who were the plaintiffs? What was the exact nature of the complaint? What were the basic statutes at issue? Although all of these details emerge within the first several chapters of the book, the clarity of the argument throughout could have been enhanced with a very basic opening foreword or even an illustrative chart.
My final complaint is very specific. On two separate occasions, Forsythe claims that “99 percent of abortions are for social reasons alone.” If this is true, the statistic cuts directly against the common refrain that abortion is all about “women’s health.” Unfortunately, this claim has no corresponding footnote pointing to a source—the only time in the book when a reference I wanted was not there.
In all, this book is a good addition to the existing historical literature on the abortion decisions. As a newcomer to this genre and written in time for the 40th anniversary of Roe v. Wade, it has the distinct advantage of drawing on forty years of social science data, legal cases, and other scholarship to draw important conclusions about the broad impact that abortion’s near-unlimited legalization has had on American society. Hailed by some as a landmark achievement for equality, the Roe and Doe decisions of 1973 now need to be reexamined on the merits of both their presuppositions and their consequences.
Zac Crippen (@ZacCrippen) is currently pursuing an MPhil in International Relations at the University of Oxford, where he is a Rhodes Scholar. He lives in Oxford with his wife, Sally.
