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Abuse of Discretion: The Inside Story of Roe v. Wade
Based on 20 years of research, including an examination of the papers of eight of the nine Justices who voted in Roe v. Wade and Doe v. Bolton , Abuse of Discretion is a critical review of the behind-the-scenes deliberations that went into the Supreme Court's abortion decisions and how the mistakes made by the Justices in 1971-1973 have led to the turmoil we see today in legislation, politics, and public health.
The first half of the book looks at the mistakes made by the Justices, based on the case files, the oral arguments, and the Justices’ papers. The second half of the book critically examines the unintended consequences of the abortion decisions in law, politics, and women’s health.
Why do the abortion decisions remain so controversial after almost 40 years, despite more than 50,000,000 abortions, numerous presidential elections, and a complete turnover in the Justices? Why did such a sweeping decision—with such important consequences for public health, producing such prolonged political turmoil—come from the Supreme Court in 1973?
Answering those questions is the aim of this book. The controversy over the abortion decisions has hardly subsided, and the reasons why are to be found in the Justices’ deliberations in 1971-1972 that resulted in the unprecedented decision they issued.
Discuss Abuse of Discretion on Twitter using hashtag #AbuseOfDiscretion .
The first half of the book looks at the mistakes made by the Justices, based on the case files, the oral arguments, and the Justices’ papers. The second half of the book critically examines the unintended consequences of the abortion decisions in law, politics, and women’s health.
Why do the abortion decisions remain so controversial after almost 40 years, despite more than 50,000,000 abortions, numerous presidential elections, and a complete turnover in the Justices? Why did such a sweeping decision—with such important consequences for public health, producing such prolonged political turmoil—come from the Supreme Court in 1973?
Answering those questions is the aim of this book. The controversy over the abortion decisions has hardly subsided, and the reasons why are to be found in the Justices’ deliberations in 1971-1972 that resulted in the unprecedented decision they issued.
Discuss Abuse of Discretion on Twitter using hashtag #AbuseOfDiscretion .
496 pages, Hardcover
First published January 1, 2013
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223 people want to read
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January 23, 2014
Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade (New York: Encounter Books, 2013). Hardback / Kindle
On January 22, 1973, the Supreme Court of the United States handed down decisions in two abortion-related cases, Roe v. Wade and Doe v. Bolton. The effect of those decisions was immediate and radical. State laws prohibiting or restricting abortion were struck down, and a right to abortion at any time for any reason was established. The United States is now one of only ten nations (out of 195) that permit abortion after 14 weeks, and one of only four that permit it for any reason after viability.
Clarke D. Forsythe argues that the Supreme Court reached the wrong decision in both cases in his new book, Abuse of Discretion. Forsythe is Senior Counsel at Americans United for Life, and this book is the culmination of over 25 years of research into the legal, medical, and political aspects of America’s abortion debate. A unique feature of this book is the extensive use of archival material from the papers of eight of the nine justices who decided the case, some of which has only recently become available to researchers.
Forsythe argues that the Supreme Court’s hearing of Roe and Doe was mistaken from the start. On February 23, 1971, the Court handed down its decision in Younger v. Harris, which limited the power of federal courts to interfere with pending state criminal investigations. The Justices voted to hear Roe and Doe on April 22 in order to determine whether, as a matter of procedure, Younger could be applied to state criminal prosecutions for abortion. The first round of oral arguments took place on December 13, when the Court had two vacancies. A second round occurred on October 11, 1972, after those vacancies had been filled.
Because the question before the Court was procedural, rather than substantive—that is, whether a federal court had the jurisdiction to intervene in state prosecutions for abortion rather than whether abortion was a fundamental right—the cases came before the Justices with no trial or factual records. And most of the oral arguments dealt with jurisdiction rather than rights. Consequently, in deciding the cases, the Justices were flying blind.
This is evident in the majority’s reliance on Cyril Means’ arguments—long since refuted—that abortion was a liberty under English common law, and that growing American restrictions on abortion in the 19th century were meant to protect the mother, not the child in the womb. It is evident in their misconstrual of the common law’s use of “born alive” as a gestational rather than evidentiary term. It is evident in their taking “judicial notice” of factual assertions—questionable even then—about the high death rates involved with illegal “back alley” abortions, and the comparative safety of legal induced abortion to natural childbirth. And it is evident in importance Roe placed on “viability,” even though the concept was absent from the Texas and Georgia laws under consideration, not to mention its absence from any state law at the time.
To put the matter simply, the majority decisions in both cases invented a right to abortion that misconstrued American legal history, rested on unfactual “facts,” and bulldozed the right of the people through their legislative representatives to craft laws according to their fundamental values. The combined decisions of Roe and Doe were more radical than any state laws that had been acted in the late 60s, even the “liberal” ones. It is sometimes thought, on the basis of Roe, that states can limit access to abortion after viability. But the “maternal health” exemption outlined in Doe makes the right to abortion so absolute that even public health requirements for abortion facilities were invalidated by federal courts after 1973. Roe v. Wade and Doe v. Bolton created a constitutionally guaranteed right to a surgical procedure largely free of regulatory oversight. Kermit Gosnell’s abortion clinic—abattoir, really—demonstrates that absent common-sense regulations, “back alley” abortions can move inside otherwise legal clinics.
American society now faces an ongoing “culture war” over abortion that is incapable of legislative resolution, precisely because the Supreme Court has taken the matter out of citizens’ hands. Where the Court has left power in citizens’ hands on other issues, the people have crafted pragmatic, moderating solutions that, while not necessarily satisfying partisans on either side, at least reflect the “vital center” of American opinion. The center does not hold in America because the Supreme Court will not let it.
For exposing the hollow legal reasoning and perverse effects of Roe v. Wade and Doe v. Bolton, Clarke D. Forsythe should be congratulated, and his book widely read.
P.S. If you found my review helpful, please vote “Yes” on my Amazon.com review page.
P.P.S. The Oyez website has the text of the Roe v. Wade and Doe v. Bolton decisions, transcripts of oral decisions, and other interesting stuff.
On January 22, 1973, the Supreme Court of the United States handed down decisions in two abortion-related cases, Roe v. Wade and Doe v. Bolton. The effect of those decisions was immediate and radical. State laws prohibiting or restricting abortion were struck down, and a right to abortion at any time for any reason was established. The United States is now one of only ten nations (out of 195) that permit abortion after 14 weeks, and one of only four that permit it for any reason after viability.
Clarke D. Forsythe argues that the Supreme Court reached the wrong decision in both cases in his new book, Abuse of Discretion. Forsythe is Senior Counsel at Americans United for Life, and this book is the culmination of over 25 years of research into the legal, medical, and political aspects of America’s abortion debate. A unique feature of this book is the extensive use of archival material from the papers of eight of the nine justices who decided the case, some of which has only recently become available to researchers.
Forsythe argues that the Supreme Court’s hearing of Roe and Doe was mistaken from the start. On February 23, 1971, the Court handed down its decision in Younger v. Harris, which limited the power of federal courts to interfere with pending state criminal investigations. The Justices voted to hear Roe and Doe on April 22 in order to determine whether, as a matter of procedure, Younger could be applied to state criminal prosecutions for abortion. The first round of oral arguments took place on December 13, when the Court had two vacancies. A second round occurred on October 11, 1972, after those vacancies had been filled.
Because the question before the Court was procedural, rather than substantive—that is, whether a federal court had the jurisdiction to intervene in state prosecutions for abortion rather than whether abortion was a fundamental right—the cases came before the Justices with no trial or factual records. And most of the oral arguments dealt with jurisdiction rather than rights. Consequently, in deciding the cases, the Justices were flying blind.
This is evident in the majority’s reliance on Cyril Means’ arguments—long since refuted—that abortion was a liberty under English common law, and that growing American restrictions on abortion in the 19th century were meant to protect the mother, not the child in the womb. It is evident in their misconstrual of the common law’s use of “born alive” as a gestational rather than evidentiary term. It is evident in their taking “judicial notice” of factual assertions—questionable even then—about the high death rates involved with illegal “back alley” abortions, and the comparative safety of legal induced abortion to natural childbirth. And it is evident in importance Roe placed on “viability,” even though the concept was absent from the Texas and Georgia laws under consideration, not to mention its absence from any state law at the time.
To put the matter simply, the majority decisions in both cases invented a right to abortion that misconstrued American legal history, rested on unfactual “facts,” and bulldozed the right of the people through their legislative representatives to craft laws according to their fundamental values. The combined decisions of Roe and Doe were more radical than any state laws that had been acted in the late 60s, even the “liberal” ones. It is sometimes thought, on the basis of Roe, that states can limit access to abortion after viability. But the “maternal health” exemption outlined in Doe makes the right to abortion so absolute that even public health requirements for abortion facilities were invalidated by federal courts after 1973. Roe v. Wade and Doe v. Bolton created a constitutionally guaranteed right to a surgical procedure largely free of regulatory oversight. Kermit Gosnell’s abortion clinic—abattoir, really—demonstrates that absent common-sense regulations, “back alley” abortions can move inside otherwise legal clinics.
American society now faces an ongoing “culture war” over abortion that is incapable of legislative resolution, precisely because the Supreme Court has taken the matter out of citizens’ hands. Where the Court has left power in citizens’ hands on other issues, the people have crafted pragmatic, moderating solutions that, while not necessarily satisfying partisans on either side, at least reflect the “vital center” of American opinion. The center does not hold in America because the Supreme Court will not let it.
For exposing the hollow legal reasoning and perverse effects of Roe v. Wade and Doe v. Bolton, Clarke D. Forsythe should be congratulated, and his book widely read.
P.S. If you found my review helpful, please vote “Yes” on my Amazon.com review page.
P.P.S. The Oyez website has the text of the Roe v. Wade and Doe v. Bolton decisions, transcripts of oral decisions, and other interesting stuff.
July 25, 2016
Not sure if it was just the weight of legal jargon in the text or the total narrative style, but this book was a chore to get through and I'm still unsure if I am a better - educated citizen for having read this book. "Abuse of Discretion" starts by dropping you into a narrative that, within the first 5-pages, tells you the author is anti-abortion and does his very best to paint pro-abortion Justices as scoundrels from page 1. This is not to say the reader might not have reached that conclusion, rather that the author continued to beat you over the head with the same circular rhetoric for 200 pages. Instead of building the narrative arch and allowing readers to come to their own conclusions, the author used poor story - telling and circular references to promote a specific view point. For being touted as the culmination of 20 years of research, it was written as a piece of juvenile research, reading like a last-minute term paper assignment for a high school history class. As a reader, it was very difficult to engage with the work, even though the amount of research done for the book is evident in each chapter.
If you are looking for a book to describe the cultural, historical, and political situation that allowed for Roe v. Wade in a way that is detailed, clear, and emgaging, look elsewhere.
If you are looking for a book to describe the cultural, historical, and political situation that allowed for Roe v. Wade in a way that is detailed, clear, and emgaging, look elsewhere.
April 12, 2018
Why did we get Roe v Wade before America was ready for it? This book describes how. I'll not consider the Supreme Court justices as exemplars of prudence after having read this. Exhaustive and occasionally repetitive. An eye opener to how SCOTUS makes law.
December 10, 2022
The sweeping scope of Roe and Doe isolated the United States as...one of only four nations (with Canada, China, and North Korea) that allows abortion for any reason after fetal viability.
Clarke Forsythe's Abuse of Discretion (AoD) is almost the very book I was searching for.
For a while, I've wanted a volume that laid out the background and history of the historic and infamous Roe v Wade Supreme Court decision. I just wanted to know how such a decision could come about, what was argued during the hearings, and what the cultural and legal climate relating to abortion was at the time the decision was handed down. AoD gives almost exactly that.
From the outset, it should be obvious that this book is written from a perspective dissenting from the Roe decision--beware of bias, and all that, of course. I don't want to just blindly praise a book because I agree with the author on most things and want their conclusions and analysis to be true. However, Mr. Forsythe seems to be a very thorough and academically driven man. Bias does not negate truth, but merely recognizing bias doesn't automatically negate its potential effects. Everything must be evaluated in its own right!
AoD is essentially split into two parts: the first is a review of what influenced the Roe decision, and the second is an analysis of what the Roe decision has, in turn, influenced.
The first part deals a lot with prior Supreme Court (and lower court) decisions and arguments that led up to the 1973 decision, as well as an exploration of just how wonky (to say the least) the proceedings of the case actually were. If even just half of what Forsythe points out is accurate about how little historical, medical, and legal argumentation and research was addressed or acknowledged during the Court's deliberation, it's a shock to me how more people aren't talking about this, and it's a thing of utmost mystery how it took 50 years for the decision to be overturned.
The second part, looking into the political, medical, and legal aftermath of Roe, is more unsettling than anything. A decision meant to empower women and clarify the debate on abortion has produce almost exactly the opposite effects, and to a previously unforeseeable degree.
Forsythe is very thorough, as I said, and each chapter has more than a hundred endnotes to refer to for fact-checking and further reading as he breaks down most every joint and point of the Supreme Decision and its effects. Things are laid out logically and clearly, and one would be hard-pressed to find an unsupported argument or claim in the entire book. In spite of the obvious bias I mentioned, Forsythe leaves very little to emotional manipulation (even when talking about very emotional topics) or to the audience just taking his word for something. The scrupulous reader can independently check almost every claim he makes for themselves.
I will admit, though, that the opening chapter (after the introduction) had me scratching my head a few times. It's not that it's of poor quality, but rather because it kind of dumps you into a heap of legal jargon and court cases and piles it on for several pages before letting you come up for air. As a lay person who is pretty unfamiliar with the ins and outs of courts and law, I expected more of an introductory, training-wheels-type easing into the subject at the outset. No cigar here. It's not really a blemish on the quality of the book, but rather on its accessibility, perhaps. And it's not like it was unreadable or made no sense; I just found myself trying to keep my head above water at many points and wait for whatever general conclusions Forsythe was going to draw from the data he was sifting through. It's fine, just not what I expected. After this steep on-ramp, the rest of AoD is very accessible and easy-on-the-layman.
If you're interested in the abortion debate, AoD needs to be on your shelf (and to be read by you, but at least have it for reference!). Those not that interested in this subject might not find much intriguing about the book. It's very straightforward and mostly dry; but those seeking such information on the topic will find the pages flying by. After much underling of what I thought were the most important parts, I think subsequent references to AoD (and it's extensive bibliography) will reward me with a wealth of returns.
Clarke Forsythe's Abuse of Discretion (AoD) is almost the very book I was searching for.
For a while, I've wanted a volume that laid out the background and history of the historic and infamous Roe v Wade Supreme Court decision. I just wanted to know how such a decision could come about, what was argued during the hearings, and what the cultural and legal climate relating to abortion was at the time the decision was handed down. AoD gives almost exactly that.
From the outset, it should be obvious that this book is written from a perspective dissenting from the Roe decision--beware of bias, and all that, of course. I don't want to just blindly praise a book because I agree with the author on most things and want their conclusions and analysis to be true. However, Mr. Forsythe seems to be a very thorough and academically driven man. Bias does not negate truth, but merely recognizing bias doesn't automatically negate its potential effects. Everything must be evaluated in its own right!
AoD is essentially split into two parts: the first is a review of what influenced the Roe decision, and the second is an analysis of what the Roe decision has, in turn, influenced.
The first part deals a lot with prior Supreme Court (and lower court) decisions and arguments that led up to the 1973 decision, as well as an exploration of just how wonky (to say the least) the proceedings of the case actually were. If even just half of what Forsythe points out is accurate about how little historical, medical, and legal argumentation and research was addressed or acknowledged during the Court's deliberation, it's a shock to me how more people aren't talking about this, and it's a thing of utmost mystery how it took 50 years for the decision to be overturned.
The second part, looking into the political, medical, and legal aftermath of Roe, is more unsettling than anything. A decision meant to empower women and clarify the debate on abortion has produce almost exactly the opposite effects, and to a previously unforeseeable degree.
Forsythe is very thorough, as I said, and each chapter has more than a hundred endnotes to refer to for fact-checking and further reading as he breaks down most every joint and point of the Supreme Decision and its effects. Things are laid out logically and clearly, and one would be hard-pressed to find an unsupported argument or claim in the entire book. In spite of the obvious bias I mentioned, Forsythe leaves very little to emotional manipulation (even when talking about very emotional topics) or to the audience just taking his word for something. The scrupulous reader can independently check almost every claim he makes for themselves.
I will admit, though, that the opening chapter (after the introduction) had me scratching my head a few times. It's not that it's of poor quality, but rather because it kind of dumps you into a heap of legal jargon and court cases and piles it on for several pages before letting you come up for air. As a lay person who is pretty unfamiliar with the ins and outs of courts and law, I expected more of an introductory, training-wheels-type easing into the subject at the outset. No cigar here. It's not really a blemish on the quality of the book, but rather on its accessibility, perhaps. And it's not like it was unreadable or made no sense; I just found myself trying to keep my head above water at many points and wait for whatever general conclusions Forsythe was going to draw from the data he was sifting through. It's fine, just not what I expected. After this steep on-ramp, the rest of AoD is very accessible and easy-on-the-layman.
If you're interested in the abortion debate, AoD needs to be on your shelf (and to be read by you, but at least have it for reference!). Those not that interested in this subject might not find much intriguing about the book. It's very straightforward and mostly dry; but those seeking such information on the topic will find the pages flying by. After much underling of what I thought were the most important parts, I think subsequent references to AoD (and it's extensive bibliography) will reward me with a wealth of returns.
October 7, 2021
This is an excellent legal unpacking of the miscarriage of jurisprudence that was Roe v. Wade and Doe v. Bolton. SCOTUS broke their own rules and procedures multiple times, engaged in political manuvering and ignored much of the evidence and lack of evidence presented to them, all to come to a predetermined conclusion.
As a non-attorney, I benefited greatly from the extensive legal background, and appreciate the deconstruction of the proabortion arguments from the legal perspective.
As SCOTUS relooks at abortion and Roe in coming months, one can only hope that they will agree with RBG that Roe/Doe were wrongly decided.
As a non-attorney, I benefited greatly from the extensive legal background, and appreciate the deconstruction of the proabortion arguments from the legal perspective.
As SCOTUS relooks at abortion and Roe in coming months, one can only hope that they will agree with RBG that Roe/Doe were wrongly decided.
September 24, 2015
Abortion. I know you're sick of hearing about it, but this is the single most important issue of our time. The world has come a long way. We can congratulate ourselves on human rights progress, strides in world hunger and poverty, and in technology. But we stand condemned for our treatment of the unborn. Let me be sensitive. Many reading this will have direct experience with abortion. I have my own story. However, if you don't think there's anything wrong with taking the innocent life of a pre-born baby, I'd love to change your mind.
Or pick up Forsythe’s book on the Roe vs. Wade decision. He discusses much of abortion history, and the statistics are staggering. I recently heard a sermon on this topic (shame on all of us that I've been in church for 20 years, and this is the first sermon I can remember about abortion), and the pastor showed some graphic pictures. I didn't want to look at them, but I made myself. We can no longer ignore the Holocaust going on among us.
Or pick up Forsythe’s book on the Roe vs. Wade decision. He discusses much of abortion history, and the statistics are staggering. I recently heard a sermon on this topic (shame on all of us that I've been in church for 20 years, and this is the first sermon I can remember about abortion), and the pastor showed some graphic pictures. I didn't want to look at them, but I made myself. We can no longer ignore the Holocaust going on among us.
September 23, 2013
Forsythe provides exhaustive research to show how a majority of Supreme Court justices made a premeditated decision to usurp the legislative process and create a constitutional right out of thin air. He also explains how for the past 40 years as a result of the ruling, the U.S. has had one of the most liberal laws of unfettered abortion in the world. Forsythe deflates arguments that legalized abortion saved the lives of many women, showing there has been no change in fatalities since the "back alley" abortion days. He also debunks the abortion is safer than having children myth.
The book is too repetitive and gets bogged down in legal jargon at time.
The book is too repetitive and gets bogged down in legal jargon at time.
Read
April 25, 2014The abortion issue is unresolved because the American people cannot resolve it in any meaningful way. They can talk about it. But--subject to federal court oversight--Americans can enact regulations only around the margins of an abortion right that extends for any reason throughout pregnancy. That fact alone explains why Roe (and Doe) have been so controversial. p. 342
November 16, 2014
An excellent analysis of what went wrong (pretty much everything) in the Supreme Court's Roe decision -- inadequate record, political biases, poor research, faulty assumptions. It also outlines everything that has gone wrong since -- the removal of a crucial debate from democratic society, and disastrous effects on the millions of lives lost and wounded as a result.
September 18, 2018
Eye Opening. Fantastic Read
Highly recommend to anyone interested in the abortion debate. Well researched and organized. I have read several books and articles favoring the pro-choice analysis of Roe. This book provides a concise insight into the countervailing arguments.
Highly recommend to anyone interested in the abortion debate. Well researched and organized. I have read several books and articles favoring the pro-choice analysis of Roe. This book provides a concise insight into the countervailing arguments.
July 13, 2017
I was surprised how readable this was due to the nature of any Supreme Court decision. Offers a fascinating look into the decision making process behind Roe and Doe and the gumption of the justices in usurping all legislative processes. Also does a thorough job addressing the flawed claims that were relied on by the court.
Displaying 1 - 11 of 11 reviews