The worst thing about the U.S. Supreme Court’s 1973 legalization of abortion in all 50 states and U.S. territories has not been the 55 million—and counting—dead babies, as horrible as that has been, but the damage it has caused to the rule of law, specifically the U.S. Constitution.  In his dissent, Justice Byron White branded Roe v. Wade “raw judicial power.”  Yet government at all levels today operates mostly on raw power.  If the government can revoke the protection of babies and enrich their killers, what can’t it do?  No wonder police abuse is now rampant.  Taxes choke the middle class.  The NSA, FBI, CIA, and other agencies relentlessly spy on everyone, even members of Congress, in violation of the Fourth Amendment.  And government schools, encouraged by other Supreme Court edicts, inculcate a functional atheism.  The Constitution remains, but only as a kind of organizational chart for government, delineating, to gloss Lenin, who oppresses whom.

Roe overturned a Texas law prohibiting abortion except to save the life of the mother.  Handed down on the same date—January 22, 1973—was Doe v. Bolton, which overturned Georgia’s antiabortion law.  But as the late Joseph Sobran used to point out, these rulings effectively overturned the abortion laws of all 50 states, even those 13 states that already had legalized abortion, including the two most populous states at the time, California and New York.  The rulings were the last in a series of opinions that crushed the original, federalist system of government and establishing in its place a centralized monolith, with the “states” as mere administrative units.  The rulings also effectively ended Christian America.  As Rodney Stark detailed in The Rise of Christianity, the Faith grew from apostolic times in part because Christians, unlike pagan Romans, abhorred both abortion and infanticide.  If the followers of the Nazarene found an exposed Roman pagan child, they baptized him and reared him.  When Christians eventually ran governments, they banned abortion.  A mark of a Christian country is this respect for life.  The Roe and Doe decisions have been mythologized by the left-wingers who took over the once pro-life Democratic Party.

Abuse of Discretion: The Inside Story of Roe v. Wade, by Clarke D. Forsythe, senior counsel at Americans United for Life, effectively demythologizes the court decisions, employing the recently released judicial papers of all nine justices in Roe and Doe—except those of Chief Justice Warren Burger, whose papers remain sealed until 2025.  Forsythe writes that Doe, which is often forgotten, was intended by the justices to be read alongside Roe.  And although Roe allowed some regulation of abortion, Doe mandated allowing abortion for all “health” reasons, including, in the Court’s language, “all factors—physical, emotional, psychological, familial, and the woman’s age.”  In effect, that meant abortion on demand.

The sweeping scope of Roe and Doe isolated the United States as one of approximately nine countries that allow abortion after fourteen weeks and one of only four nations (with Canada, China, and North Korea) that allows [sic] abortion for any reason after fetal viability.

According to the papers of Justice Harry Blackmun, who wrote for the Roe majority, the two cases were expected to be about procedural matters.  In 1987, Blackmun wrote to then-Chief Justice William Rehnquist that Justice Potter Stewart “pressed” for the two cases “to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris.  How wrong we were.”  (One might note that neither Blackmun nor the other Roe-majority justices ever retreated from their 1973 decision.)  Younger was drawn out and complicated, but in essence it “put limits on the power of the federal courts to interfere with pending criminal prosecutions in state courts.”  Younger came up in the abortion cases because they were “filed in federal court against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in a state court might file a case in federal court to block the state prosecution.”

This is important because the two cases were decided on procedural grounds that “would not require an extensive factual record.”  And despite the complexities, Justice William J. Brennan wrote in a memo of December 30, 1971, to Justice William O. Douglas that “None, in my opinion, forecloses decision on the crucial questions here—the existence and nature of a right to an abortion.”

Forsythe accounts for the influences that lay behind Roe.  Population control was a major issue at the time.  Paul Ehr­lich’s The Population Bomb (1968) was a bestseller, while Robert McNamara, president of the World Bank, warned in speeches delivered in 1968 and 1969 of “the mushroom cloud of the population explosion.”  Even President Richard Nixon, betraying the Silent Majority that had elected him, delivered on July 18, 1969, a “Special Message to the Congress on the Problems of Population Growth,” and established a commission headed by John D. Rockefeller III, a longtime booster of population control.  In March 1972, Rockefeller’s commission released a report advocating population control and abortion.  Forsythe notes that the report was released just “as Justice Blackmun was working on his draft opinions.”

“Population control” meant exterminating Americans, while encouraging tens of millions of immigrants, legal and illegal and mostly from the Third World, to replace them.  Forsythe also details the role of what we now call the mainstream media in preparing the way for legalized abortion.  A claim of 5,000 yearly maternal deaths from abortions in the 1930’s was later repudiated by its own author, Frederick Taus­sig, yet that claim was still cited throughout the 1960’s in newspaper accounts.  In fact, tables provided in the book show that maternal deaths resulting from illegal abortion declined steadily throughout the 1960’s to only 133 in 1968.

When the Court finally took up Roe and Doe, Forsythe lists the ways “the Justices ignored several long-standing principles for good decision-making on constitutional issues”:

Medical and statistical assertions that are not in the trial record but relied on by the judges—what lawyers call “judicial notice”—should be limited to indisputable facts.


Courts should not decide constitutional questions on an incomplete or inadequate record.

Courts should not formulate rules of constitutional law broader than required by the facts.

Courts should not decide constitutional questions unless the question is presented with the clarity needed for effective adjudication.

Three years after he joined the Roe majority, Justice Thurgood Marshall, in a separate case not involving abortion, hypocritically

wrote the opinion for a unanimous Court noting the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’”

A year after that, Blackmun wrote something similar in another case.

The state abortion laws that were overturned by Roe punished only abortionists.  Sarah Weddington, who represented “Jane Roe,” conceded that fact before the Court.  Not prosecuting the mothers encouraged them to testify against the abortionists.  The mother was considered the “second victim.”

Yet following the 1973 rulings, the Court treated abortion as being safer than childbirth.  “The Justices never questioned the truthfulness of the mantra or of the proffered medical data, though it was disputed by the attorneys for Texas and Georgia,” Forsythe notes.  A big problem was that the low death rate commonly cited from abortions was valid for legal abortions only, while the childbirth mortality rate included “deaths from [illegal] abortions, ectopic pregnancies, accidents, and homicides.”

Since then, “growing data on long-term risks” from abortions show increased risks or incidences of preterm birth, placenta previa, drug and alcohol abuse, suicide, psychiatric hospitalization, “the loss of the protective effect against breast cancer of a first full-term pregnancy,” and an “increased incidence of violence and assault associated with abortion.”  The double effect of Roe and Doe was to make abortion the one area of medicine virtually beyond regulation, thus allowing for unsanitary conditions, infant corpses thrown in garbage cans, perforated uteruses, and dead moms.  Forsythe lists numerous abortion-clinic scandals from the past 40 years, only some of whose perpetrators were prosecuted in court.  The most notorious case was that of Kermit Gosnell, convicted in 2013 of murdering three children after they survived planned abortions.

Thirty-eight states now protect unborn children through wrongful-death and fetal-homicide statutes—restrictions that are allowed by courts, provided that abortion remains legal in those states.  “Twenty-eight states now recognize a child as a human being subject to homicide from conception. . . . These statutes are actively enforced, and juries regularly convict third-party assailants.”

The two mothers involved in Roe and Doe, both of whom actually delivered their babies, have since come forward.  Jane Roe is Norm McCorvey, whose abortion was prevented by the Texas law Roe toppled.  She now says “the entire abortion industry is based on a lie.”  Mary Doe is Sandra Cano, who says she never sought an abortion and insists she was tricked by pro-abortion lawyers.  In 2003, she filed a motion to have Doe overturned.  The Supreme Court refused to hear her case.


[Abuse of Discretion: The Inside Story of Roe v. Wade, by Clarke D. Forsythe (New York: Encounter Books) 477 pp., $27.99]