Chicago area-based attorney and author Clark Forsythe sees a potential fatal flaw in the 1973 Roe vs Wade decision and shared his insight in a Washington Times op-ed this week -
The Obama administration is pushing public subsidies for abortion and seeking to expand it through Obamacare. As a result, Roe v. Wade — the Supreme Court’s 1973 decision legalizing abortion in all 50 states — may seem more secure than ever. However, there are underlying reasons to think that it grows more vulnerable every year. As pro-life Americans gather from across the country for the March for Life in Washington on Wednesday, it’s important to understand that the abortion issue in America in 2014 is not the abortion issue of 1973.
In Roe v. Wade, the court eliminated the abortion laws of all 50 states, and in the companion case of Doe v. Bolton, the court eliminated state health and safety regulations. Together, Roe and Doe imposed a national abortion license that is way out of line with international standards. In 2014, the United States is one of only four nations (with China, North Korea and Canada) allowing abortion for any reason after fetal viability.
Roe’s broad license is also way out of line with American public opinion. Gallup polling data since at least 1975 show a solid and persistent majority of Americans who support abortion only in “certain circumstances” early in pregnancy. Support for what the court actually did in Roe — abortion for any reason, at any time of pregnancy — declined from 12 percent to 7 percent between 2006 and 2009, according to data from the Polling Company. One simple reason that abortion is more controversial in the United States than in other countries is that the justices have imposed the views of the 7 percent since 1973.
Without any record evidence, the court in 1973 also adopted the medical myth that “abortion was safer than childbirth.” That influential myth has been told to millions of women considering abortion ever since. It was wrong in 1973, and it’s wrong today. The myth is based on the mechanical comparison of the published U.S. maternal (childbirth) mortality rate and the published U.S. abortion mortality rate. These two rates are like apples and oranges; what goes into their numerators and denominators is completely different.
Relying on the medical myth, the court prohibited health and safety regulations in the first trimester (when 90 percent of abortions are performed) and fostered a public health scandal that it can’t fix, leaving women vulnerable to substandard practice in clinics. Though some states have enacted health and safety regulations since 2000, they are completely at the discretion of the federal courts.
As the reality has set in, the public has grown increasingly skeptical about abortion. The court adopted an unprecedented, sweeping ruling, and the states have been trying to moderate it ever since. Many states have enacted marginal regulations around the periphery of the abortion license. The court has retreated from Roe in three cases — in 1989, 1992 and 2007 — gradually allowing more regulations around the margins. The right to abortion for any reason, at any time, however, remains.
There have been two other critical changes since Roe.
First, ultrasound. The justices were told about fetal medicine at the oral arguments in 1971-72, but they lacked any curiosity and were oblivious to its significance. Ultrasound jumped into the marketplace just three years after Roe and changed public understanding permanently.
Second, scientific data on the health risks of abortion for women. In the past two decades, there have been a growing number of international studies finding increased risks to women from abortion and showing that abortion legalization is not necessary to promote maternal health. More than 130 international, peer-reviewed medical studies have found an increased risk of pre-term birth after abortion. More than 100 international, peer-reviewed medical studies have found an increased risk to mental health after abortion. More than 40 international, peer-reviewed medical studies have found an increased risk of breast cancer after abortion, including two since November from China and India.
The court’s 1973 edict also provoked legal schizophrenia. When the court intervened in 1973 and stripped the “fetus” of virtually all legal protection, it did so only in abortion law. The court’s ruling did not touch state legal protection in property, homicide, wrongful death and prenatal injury law. Over 41 years, legal protection for the unborn child has grown year-by-year, state-by-state.
In 2014, the public authority of Roe and the court is largely built on a hoax: the myth that “overturning” Roe would make abortion immediately illegal everywhere. The facts are quite the opposite. Most states have repealed their pre-Roe prohibitions. Fifteen other states have state judicial versions of Roe that would prevent any prohibitions. The reality is that if Roe were overturned today, abortion would be legal tomorrow, up to viability, in at least 42 states and probably all 50.
Abortion would return to the state legislatures and state public health systems. Some states would allow abortion freely; the vast majority of states would allow it for broad reasons, and a dozen states might prohibit it, with even those states likely allowing it for rape and incest and to save the life of the mother.
In 1973, the justices stumbled into an enduring controversy and launched the country on 40 years of political and medical turmoil. Because the court acts only passively through cases appealed to it, the court cannot fix the problem, unless it relinquishes its self-appointed role as a sort of national abortion control board and returns the issue to the people and their representatives in the states. The cracks in Roe, under the pressure of its internal contradictions, grow inexorably, year by year.
Clarke Forsythe is senior counsel of Americans United for Life and author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter, 2013). FIrst published Tuesday, January 21, 2014 in the Washington Times.