Over 75 amicus and amici curiae briefs have been filed by petitioners for the upcoming Dobbs v. Jackson Women’s Health Organization Supreme Court case, including many by Human Life Review contributors and allies. One, filed by the Conservative Legal Defense and Education Fund, refers directly to two recent Review articles written by Robert Marshall, who served as a member of the Virginia General Assembly for 26 years and is the author, with Charles Donovan, of the indispensable study Blessed are the Barren: The Social Policy of Planned Parenthood.
From Section II of the Argument, titled ROE’S FLAWED ASSUMPTIONS UNDERSTATING THE MATERNAL RISK FROM ABORTION, which discusses Justice Blackmun’s “three possible justifications for a state to criminalize abortion”:
The second rationale for State regulation was the health of the mother. He speculated that “[w]hen most criminal abortion laws were first enacted, the procedure was a hazardous one or the woman.” Id. at 148. He found this rationale no longer convincing because of “medical data indicating that abortion … prior to the end of the first trimester, although not without its risk, is now relatively safe.” Id. at 149. He went so far as to assert that the mortality rates for lawful, early abortions “appear to be as low as or lower than the rates for normal childbirth [and thus] any interest of the State in protecting the woman … has largely disappeared.” Id. For this claim he offered a string cite containing some highly questionable data.
The majority of the studies were authored by famed abortion advocate and Planned Parenthood advisor Christopher Tietze, M.D. An analysis of the data available to the Roe Court in 1972 was published recently as the lead article in The Human Life Review, written by long-serving Virginia State Delegate Robert G. Marshall. His documented analysis demonstrates the serious flaws in Blackmun’s assumptions and reasons to doubt his work, as well as other data sources on maternal risk. No stickler for the truth, in 1964, Dr. Tietze counseled against telling women the truth about how intrauterine devices (“IUDs”) work. Tietze was concerned that if women understood that the IUD “prevents implantation of a fertilized egg in the uterus,” resulting in the death of the fertilized egg, they might not use IUDs even though they should. Deception was essential, so as not to “‘disturb those people for whom this is a question of major importance.’” R.G. Marshall, “Abortion, Women, and Public Health: Getting the Whole Truth,” The Human Life Review, Vol. 46, No. 2 (Spring 2020) at 10-11. For his work in supporting abortion rights, in 1973, Dr. Tietze was awarded the Margaret Sanger Award by Planned Parenthood Federation of America.
Justice Blackmun’s other source for the safety of women having abortions was the CDC, and again, in the Review’s pages, and cited in the brief, Marshall challenged the data:
Marshall convincingly demonstrated that not only did the CDC never develop a comprehensive and accurate method of recording and reporting maternal abortion-induced injuries and death, but also the systems it did develop were clearly designed to discourage the collection of such data so pro-abortionists could falsely make claims about the safety of abortion for women, which continues even to this day.
In the Section IV: ROE ERRONEOUSLY ASSUMED STATE ANTI-ABORTION LAWS WERE NOT WRITTEN TO DEFEND THE PREBORN , Marshall’s article in our current (Spring 2021) issue, “Lies that Keep Abortion Legal,” is cited to refute Blackmun’s claim that abortion laws were written to protect women, not the unborn (see note 8).
For a refutation of the policy arguments made by abortion supporters, see R.G. Marshall, “Lies that keep Abortion Legal,” supra, refuting six common objections: 1. Women will be prosecuted if they use the Pill or IUD; 2. Women will be prosecuted as criminals for spontaneous miscarriage; 3. Women who abort will be prosecuted for capital murder; 4. Women who abort will be prosecuted and jailed; 5. Women will be prosecuted for self-abortion; and 6. Abortion does not kill a human being or person.
Elsewhere in this eminent brief, I was struck by this, from Section I of the Argument THIS COURT SHOULD OVERULE ITS RIGHT TO ABORTION PRECEDENTS, Part C: Casey Is Also Fundamentally Flawed:
Strangely, it may be the stare decisis aspect of the Casey decision that is the most constitutionally offensive. It manifests a bald arrogation of judicial power in its perverse refusal to correct a profoundly flawed precedent, purportedly so as not to undermine public confidence in the integrity of the Court’s decision-making.
And in Part D, The Corrosive Effect of the Court’s Abortion Jurisprudence Cannot Be Ignored:
A willingness to admit when the Court is fundamentally wrong, and a restoration of the appropriate balance between the Court and states—as well as between the Court and Congress—is necessary to respite that confidence.”
Amen and Oremus!!
Stay tuned! Next week we will look at the brief filed by pro-life feminist organizations and 240 women scholars and professionals.