Legalized Abortion: Why Roe Was Not Inevitable

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WASHINGTON -- Legalized abortion in America was not inevitable, according to Clarke Forsythe, senior counsel at Americans United for Life.

After researching the personal papers and files of the 1970s Supreme Court justices, he concluded the high court's 1973 Roe v. Wade ruling to make abortion legal was just an accident of history.

In his book Abuse of Discretion: The Inside Story of Roe v. Wade, Forsythe shows how Roe and its sister case, Doe v. Bolton, were supposed to be much less groundbreaking.

Before it morphed into a major ruling that would legalize abortion for the entire nation, Roe was a relatively small case about who had jurisdiction over abortion prosecutions.

But the transformation began taking shape when two conservative justices faced serious health issues that caused them to retire in 1971, flipping the court from conservative to liberal.

"It empowered a four-three majority -- four justices who were bent on eliminating the abortion laws to push ahead during those twin vacancies to use the cases to declare a right to abortion and eliminate the abortion laws," Forsythe told CBN News.

Roe Author Pressured

Those four justices -- William O. Douglas, William Brennan, Thurgood Marshall, and Potter Stewart -- lobbied and pressured a wobbly Justice Harry Blackmun, the designated author of the Roe ruling, to join them in their cause.

"And he was pushed continuously, month after month, at point after point, by Justices Douglas, Brennan, Marshall and Stewart to expand the decision, sweep away more regulations, declare a broader right to abortion and so forth," Forsythe explained.

Forsythe said the court of that era was swayed by the 1960s sexual revolution and the belief at the time that a population explosion was about to cause global famine.

"The population crisis was a big theme of political rhetoric in the 1960s," Forsythe said. "It clearly influenced the justices."

Abortion Safer than Childbirth?

The justices also readily accepted the notion that abortion is safer than childbirth, which made it much easier to legalize. And they bought into this notion with little proof.

"There was no evidentiary record on that. There was no trial. There were no medical experts, no cross-examination," Forsythe continued.

Before the Roe ruling, abortion advocates hoped at the most to get the procedure legalized during the first 12 weeks after conception. But a staffer of Blackmun's pushed him to make abortion legal before a fetus' life could be "viable." Then the justices arbitrarily decided that was 28 weeks.

"The pro-abortion organizations, the medical organizations, never argued for a right to viability," Forsythe said. "And so when the sweeping ruling came out, even the most pro-abortion advocates were just astounded at the scope of what they thought was their victory."

Legal for Entire Pregnancy

Forsythe's book documents how the justices then decided to tag on that any abortion would be legal if the pregnancy threatened the mother's health, but that that could mean mental or emotional health, not just physical health.

"That gives us abortion on demand from conception to birth, and it also ranks the U.S. as one of four nations out of 195 around the globe that allows abortion for any reason after fetal viability," Forsythe told CBN News. "Those four nations are China, North Korea, Canada, and the United States."

Forsythe believes Roe v. Wade can still be overturned because this milestone ruling so went against the will of the American people, both then and now.

"It not only conflicted with public opinion in 1973, it conflicts with public opinion today," Forsythe said. "The court's edict is abortion for any reason at any time. And today only 7 to 9 percent of Americans agree with that -- a tiny minority of Americans."

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Paul  Strand

Paul Strand

CBN News Washington Sr. Correspondent

As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at Facebook.com/PaulStrandCBN.