On December 1, the Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization (an abortion clinic), a case challenging the legality of a Mississippi law that bans abortion after 15 weeks of pregnancy. Mississippi has asked the Court to overturn Roe v. Wade through the use of a statute that prohibits abortion before viability. So, viability is back on the table, as it should be. Many scholars on both sides of the debate agree that the High Court has never given a satisfactory justification for its viability rule. More broadly, I believe ordinary citizens, and certainly feminists, should take an unvarnished look at how Roe came to be. Abuse of Discretion: The Inside Story of Roe v. Wade by attorney Clarke D. Forsythe does just that. It’s a scholarly book, which I usually find as interesting as watching paint dry, but this one is different. Yes, it’s chock-full of Smith v. Jones and all such, and there are a lot of names and dates to keep straight, but a comprehensive index and notes section makes that easy to do and, most importantly, Mr. Forsythe has a very engaging writing style and a natural gift for telling a story so, odd as it may seem to say, it’s a good read. And a timely one. I was late getting to the book—it was published in 2013—but having just read it, here’s my ordinary citizen’s take on the story it reveals.
Roe v. Wade gets all the attention, but Doe v. Bolton—Roe’s companion case decided the same day—was even more far-reaching. Roe made abortion for any reason okay before viability, defining viability as able to live outside the womb, and set it at six months—thus blithely tossing out the traditional definition of viability as “proof that pregnancy was progressing.” Like feeling the baby kick. How’s that for a big clue? It usually happens between 14 and 16 weeks. Of course, viability becomes a moot point when abortion is undertaken to save the life of the mother; the law has always had a life-of-the-mother provision. But then Doe went even further, making abortion possible for any reason, even after fetal viability, by expanding the scope of “life” of the mother to embrace “health” of the mother, and defining health to include emotional well-being. We’re not talking nervous breakdown here. We’re talking about any emotional reservations a woman may have about being pregnant. Such as: I don’t want to be. Ironically, Sandra Cano, the Mary Doe in Doe v. Bolton, changed her mind once she felt her baby kick and decided not to have an abortion. Her lawyer, Margie Pitts Hames, proceeded without her. Why let a little thing like the symbolic client in your class-action suit backing out get in the way of an opportunity to argue a case before the Supreme Court?
The Court agreed to hear Roe and Doe in the Fall of 1971, considering them, as Forsythe relates, nothing more than an application of Younger v. Harris, a case decided on February 23, 1971, only 60 days earlier. At the time, this deeply disappointed Justice William O. Douglas, who had a long-standing desire to end the abortion laws and was hoping for an opportunity to face it head on.
Younger v. Harris involved federal court intervention in state court criminal proceedings; a doctor who was prosecuted in state court might file a case in federal court to block the state prosecution. So Roe and Doe were taken up not with the idea to address abortion rights per se, but to decide this jurisdictional issue, and abortion’s intricacies were left on the wayside. As Forsythe points out: “The procedural complexities were not something to be lightly dismissed. Indeed, they were asking some of the biggest questions about Roe: Should the justices decide this issue? Should they decide it without a factual record? Or without review first by a federal appellate court? Could Jane Roe or Mary Doe clearly and accurately represent the facts of the abortion controversy? Could they represent the ‘class’ of women seeking abortion? Should the Supreme Court sweep away an important area of criminal law and public health?”
The good news for pro-abortion Douglas was that two of the justices, Hugo Black and John Marshall Harlan II, suddenly retired in September of 1971 due to ill health, leaving only seven sitting justices. A screening committee was charged with selecting less “controversial” cases until the Court was back up to speed, and Roe and Doe, as merely an application of Younger v. Harris—and not requiring a hefty factual record to address the aforementioned difficult legal, historical, or medical questions of abortion—fit the bill. And since Justices Douglas, Stewart, Brennan, and Marshall were calling it only a jurisdiction issue, they stopped looking for abortion cases with a factual and medical record to hear. So, Roe and Doe were on the schedule and on their way before the Court regained the full complement of nine. My take? It was the embodiment of abuse of discretion. A bait and switch.
Roe issued two important rulings based on interpretations of the Fourteenth Amendment, which proclaims, in part, that no state shall deprive any “person” of “liberty.” So, step one: Interpret “liberty” to include “right to privacy.” At least this interpreting “liberty” step had some case law to back it up, such as 1965’s Griswold v. Connecticut, which was about marital use of contraception. But step two was outright invention. The justices declared that the “unborn” are not “persons” and so not protected by the Fourteenth Amendment. In truth, the law had treated the unborn as “persons” in terms of property, criminal law, torts, and equity going back centuries. And when the justices created a nationwide right to abortion for any reason throughout the pregnancy, they still allowed the states, through property, tort and criminal law, to protect the unborn from other violence during the pregnancy, such as when some lout beats a woman up and she miscarries. So . . . an unborn child only has protection under the law if he or she is wanted by the woman. That’s a lot of power to give to a gender that society didn’t tend to empower otherwise. My take? Of the seven justices who voted for Roe and Doe the youngest was born in 1915 and the oldest in 1898 (Douglas, the most gung-ho). That’s before women had the vote, which was not given kindly and caused resentment for many years, and when women were still regarded as the property of husbands. Why just accept the idea that these men acted with feminist ardor?
One of the things in play while the Supreme Court was deciding Roe and Doe was the “population explosion” frenzy. By the late 1960’s claims of a “population crisis” were a major theme in national politics. A federal judge in Connecticut, who struck down the state’s abortion law in 1972, cited Paul Ehrlich’s book The Population Bomb. Ehrlich’s prediction that a worldwide famine in the 1970s would kill hundreds of millions of people due to overpopulation would prove wrong. Populations grew, but so did standards of living and income in the U.S. and Asia and Africa. But at the time it was full-blown panic. Robert McNamara, Kennedy’s former Defense Secretary, compared it to a nuclear holocaust in terms of urgency, and some of the justices shared this sense of dread. But the only solution these learned men cared to entertain was for women to abort. My take? Only ten years later the AIDS epidemic would generate a successful, nation-wide condom-use campaign and calls for behavioral change. No alterative “population explosion” solutions were considered in 1973. Feminists should ask why.
Let’s assume for the sake of argument that the justices, however misguided, were sincere about social parity for women and fashioning a law for abortion on demand was their way of doing it. But why tack on “through the ninth month” when even the abortion-rights movement never asked for that much? My take? An “in for a penny, in for a pound” mentality. A desire to satisfy a brave-new-world law of their own invention by holding that once you say it’s acceptable to end a pregnancy you must regard it as a totality, not trimesters or feeling the baby kick or even the moment of birth lest you be accused of a discrepancy. They were covering their be-robed behinds.
My take in sum: The Court bent over backwards to expedite the process so Roe and Doe could be heard, gung-ho Justices Douglas and Brennan arrived at a decision before any arguments were presented, Marshall and Stewart went along, and wishy-washy Blackmun was tasked with writing the opinion. Powell and Burger later changed their minds and were critical of the Roe opinion.
What I also take away is a Supreme Court not looking out for the best interests of women. I see “managing the herd.” We’re encouraged to believe they felt sympathy for the plight of women (without asking men to change in any way), but I don’t see sympathy, I see pity. It must be awful to be female! Let’s give gals a way to circumvent biology! But without inconveniencing men.
Roe v. Wade has been the law for 48 years. It won’t be totally reversed. So, to the women reading this who are fearful that it might be: Relax, take a deep breath, take off your rose-colored glasses and see this abortion law for what it is and how it got here. You can start by reading Clarke Forsythe’s Abuse of Discretion—an invaluable trove of facts and information the press has neglected to provide women. Perhaps one day we will develop a holistic, truly woman-centered approach that’s not dependent on sloppy law granted by dubious “heroes.”
There was an anti-war slogan in the late sixties: What if they gave a war and nobody came? Simplistic and drenched in the arrogance of youth, yes, but I would like to borrow its core principle for our contentious abortion issue: What if they built a legal abortion clinic and it just gathered dust? What would it take for that to happen?