Book Review: ‘Abuse of Discretion’ by Clarke D. Forsythe

Ever since it was decided in 1973, Roe v. Wade has been harshly criticized—not only by pro-life conservatives but also by some pro-choice liberals who question the decision’s breadth and constitutional reasoning. Soon after the decision was announced, Laurence Tribe of Harvard Law School observed that Roe went “to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.” Nearly 20 years later, before she joined the Supreme Court, Ruth Bader Ginsburg declared that Roe was not a “measured motion” because it “invited no dialogue with legislators.” Instead, it created “a set of rules that displaced virtually every state law then in force.”

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Critics of Roe, pro-choice and pro-life, note that the Supreme Court not only voted 7-2 to strike down the laws in Texas and 29 other states that banned abortion in any case except to save the life of the mother. In a companion case originating in Georgia, called Doe v. Bolton, the court voted by the same margin to strike down 13 more-liberal abortion laws, passed between 1967 and 1970, on the grounds that they didn’t include a health exception that allowed women to seek abortions at any point in pregnancy if their health was threatened. Furthermore, the court broadly defined “health” to include psychological as well as physical concerns.

Clarke Forsythe argues in “Abuse of Discretion” that “the sweeping scope of Roe and Doe isolated the United States as one of approximately nine countries that allow abortion after 14 weeks and one of only four nations (with Canada, China, and North Korea) that allow abortion for any reason after fetal viability.” Mr. Forsythe, former president and currently senior counsel at the pro-life advocacy group Americans United for Life, sets out to answer the question of why the court ruled so broadly.

Mr. Forsythe’s generally fair-minded narrative about the internal dynamics on the Roe court will not change the minds of activists on either side of this intensely polarized debate. Nor can it tell the justices whether to overturn Roe, given that the case has been repeatedly reaffirmed over the past 40 years. But “Abuse of Discretion” provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions.

Justice Harry Blackmun, the author of Roe, said in a 1991 interview that the court’s decision to hear the abortion cases was a “serious mistake” because the justices initially thought they were considering a narrow procedural question of when courts should intervene in pending criminal prosecutions. As a result, they decided the abortion cases without possessing a factual record about the medical, social and legal effects of various abortion restrictions. This gave a free-floating quality to the deliberations, which Mr. Forsythe documents in detail. Drawing on the private papers of the justices that have been released in the past two decades—including those of Blackmun, Potter Stewart and Byron White—he traces the horse-trading that occurred behind the scenes.

The first draft of Blackmun’s Roe opinion would have held narrowly that the extreme Texas law, which allowed abortion only to save the life of the mother, was unconstitutionally vague. Blackmun wanted the parties to reargue the abortion cases the following year, so that they could be heard by a full court that included two new justices, Lewis Powell and William Rehnquist. But William O. Douglas, the most liberal justice, threatened to publish a scorching dissent unless Blackmun agreed to decide the cases without reargument. Douglas’s “prolonged tantrum,” as James Simon called it in his book “The Center Holds” (1995), produced the commitment from Blackmun that Douglas demanded.

The most striking insight to emerge from Mr. Forsythe’s book is how haphazardly the court selected “viability” as the point in fetal development after which abortions could be prohibited by the state. Mr. Forsythe suggests that the justices and law clerks, essentially, pulled the viability standard out of a hat.

Blackmun’s second draft opinion emphasized the end of the first trimester (12 weeks) as the “critical” limit to the right to an abortion. “This is arbitrary, but perhaps any other selected point, such as quickening or viability is equally arbitrary,” he wrote to his colleagues. But Blackmun’s law clerk proposed viability, which occurs at least three months later, and Powell’s law clerk, influenced by a lower-court opinion by Judge Jon O. Newman, also championed the viability cause. Powell and Thurgood Marshall, who supported a broad abortion right on pragmatic grounds, persuaded Blackmun to extend the period for broad protections of the right to abortion. According to Mr. Forsythe, viability was not mentioned when Roe and Doe were argued in the lower courts and in the Supreme Court, and the parties did not urge the justices to adopt viability in their briefs.

Why does it matter that the justices chose an arbitrary dividing line? Because, Mr. Forsythe argues, when a plurality of justices upheld Roe in the 1992 case Planned Parenthood v. Casey, they stressed that the court’s adoption of viability was “a reasoned statement, elaborated with great care.”

At the heart of the justices’ deliberations, Mr. Forsythe argues, was the assumption that “abortion is safer than childbirth.” He suggests the data the justices relied upon were open to question and goes on to object that, by treating abortion as a constitutional right, the justices made “abortion virtually immune” from public health oversight.

In some cases, Mr. Forsythe wanders into areas where the medical and legal history becomes ideologically contested. He suggests, for example, that Blackmun misinterpreted the longstanding legal history regarding “quickening”—that is, when the mother can perceive the fetus’s movements. Quickening can occur as early as 14 weeks, and until the 19th century, he argues, abortions were rarely prosecuted before quickening because of uncertainty about if the fetus was alive. When “medical science challenged the quickening rule in the 1800s by showing that conception was the beginning of the life of a human being,” he writes, “states quickly moved to repeal the quickening rule and replaced it with an abortion prohibition from conception.”

Mr. Forsythe doesn’t cite, or respond to, recent work by scholars such as Reva Siegel of Yale Law School suggesting that the reason a majority of states limited abortion in the late 19th century wasn’t simply insights from “medical science”; it was efforts by the all-male American Medical Association to protect its monopoly on pregnancy-related health care against competition from female midwives. The rule helped enshrine stereotypes that mothers should bear children rather than making autonomous decisions about their lives and careers.

The most surprising omission in this book is that Mr. Forsythe fails to discuss in any detail the transformative impact of Gonzales v. Carhart, the 2007 decision by 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. The Gonzales case, which Americans United for Life has invoked in defending current laws that restrict abortions throughout pregnancy, 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.”

Mr. Forsythe’s book will not displace earlier accounts of the justices’ private deliberations in Roe—most notably, “Liberty and Sexuality” (1994), the comprehensive and definitive volume by David Garrow, the leading liberal historian of the subject. But Messrs. Forsythe and Garrow both make clear how sweeping the court’s ruling was. When the case came down, Mr. Garrow wrote, “no state allowed unrestricted abortion throughout pregnancy, as Roe effectively does.”

Why does it matter how the justices reached the decision in Roe? Because the case fundamentally altered the debate about abortion, which might have developed differently after a more narrow ruling. Mr. Forsythe cites polls to support his suggestion that the court leapt ahead of public opinion in 1972, to the degree that it allowed abortion at any point in a woman’s pregnancy, for any reason that might threaten psychological health. He speculates that, had the court not intervened, “most states, perhaps [would have] retained their criminal prohibitions but some [would have] experimented with broad exceptions.” But he concedes that for 40 years “a majority of Americans have agreed that abortion should only be legal under certain circumstances early in pregnancy.”

The author cites, for instance, the remarkably stable Gallup poll numbers suggesting that each year since Roe was decided, from 1973 through 2011, majorities of between 70% and 80% of Americans have said that abortion should be legal in “certain circumstances” or in “any circumstance.” Given that only a small minority of Americans believe that abortion should be illegal in all circumstances, according to the numbers that Mr. Forsythe cites, most of the 30 very restrictive state abortion laws that Roe struck down might well have been repealed or revised by state legislatures even without the Supreme Court’s intervention. How quickly that would have occurred is anyone’s guess.

Mr. Forsythe estimates that if Roe were overturned today, “10 to 12 states might maintain abortion on demand as under Roe, ten states might prohibit abortion except to save the life of the mother and thirty states might move toward a more restrictive policy than that allowed under Roe.” These numbers are open to debate (it’s arguable that majorities in few if any states support near total abortion bans). He is correct, though that more restrictions on post-viability abortions wouldn’t “satisfy activists on either side of the spectrum, but would be more in accord with public opinion.”

Justice Ginsburg has said that the court should have ruled more narrowly in Roe, striking down the extreme Texas law while leaving it up to the states to debate the precise contours of the right to choose. Mr. Forsythe agrees that a narrower ruling could have allowed the debate to continue while participants observed how public health was affected in the 13 states that allowed abortion under certain circumstances. A wiser and more restrained approach, in other words, might have been “wait and see.”

Mr. Forsythe is especially critical of the Supreme Court for deciding Roe on an incomplete factual record, with no trials or evidence in the lower courts or examination of medical evidence. “Courts should not formulate rules of constitutional law broader than required by the facts,” Mr. Forsythe concludes. Today liberals criticize conservative justices for delivering overly broad decisions in cases like Citizens United v. Federal Election Commission, which struck down campaign-finance restrictions on corporate spending, and Shelby County v. Holder, which struck down a key provision of the Federal Voting Rights Act. Mr. Forsythe’s book is a useful chronicle of the most prominent case in the past 40 years when the shoe was on the other foot.

—Mr. Rosen, a professor at George Washington University, is president and CEO of the National Constitution Center.A version of this article appeared October 11, 2013, on page C5 in the U.S. edition of The Wall Street Journal, with the headline: How the Court Made the Choice.