The following comes from an Oct. 29 interview in Catholic World Report with Clarke Forsythe, author of Abuse of Discretion: The Inside Story of Roe v. Wade. Forsythe is the senior counsel with Americans United for Life.
….CWR: You note that the United States is an outlier when it comes to abortion rights. How extreme is the United States juridical position compared to the rest of the world?
Forsythe: The U.S. is only of only four nations across the globe that allows abortion for any reason after fetal viability: China, North Korea, Canada, and the U.S.
CWR: Why did the justices adopt a standard of “viability” (meaning the stage in development when the child can survive outside the womb independent from the mother) and how does the Court’s definition of “health” factor into this?
Forsythe: For the first year of deliberations, the justices were only considering creating a right to abortion up to twelve weeks (the first trimester). Then after the second round of arguments in October 1972, the Justices began to negotiate behind the scenes as to the scope of the “right” and Justices Powell and Marshall lobbied Justice Blackmun to expand the right to viability, which they thought at the time occurred around 28 weeks. They did so for purely pragmatic reasons: to expand access to abortion. But then they outlined the Doe “health exception” after viability, which means that the states must allow abortion even after viability, at the discretion of the provider, for any reason related to the “emotional well-being” of the woman.
CWR: You observe that the idea that “abortion is safer than childbirth” was an influential factor in the justices deliberations on the matter. What medical or scientific research is this assumption based on?
Forsythe: Yes, that notion drove the entire outcome in Roe and Doe; it was the key medical assumption in the cases. Since there was no trial or evidentiary record in the lower courts in Roe and Doe, there was no factual evidence supporting that notion. That too was urged on the Justices by the attorneys and interest groups in the Supreme Court. The notion was based on maternal mortality numbers from the 1950s in Soviet Bloc countries. Today the notion is based on a mechanical comparison of the official published abortion mortality rate and the maternal (childbirth) mortality rate. But these rates are non-comparable because what goes into the numerators and denominators of the two rates is radically different. It’s apples and oranges.
CWR: So much of the language of abortion rights is touted under the banner of women’s health and women’s rights. Has legal abortion been a real service to women? And are there long-term studies that evidence the effects abortion has on these women in the long run?
Forsythe: One chapter in Abuse of Discretion examines the short-term and long-terms risks and negative impact on health and relationships. Abortion isn’t about women’s health; it’s just population control. There has been a growing body of international medical data on the long-term risks of abortion over the past two decades. We now have more than 130 international, peer-reviewed medical studies finding an increased risk of pre-term birth (PTB) after abortion. And we have more than a hundred international, peer-reviewed medical studies finding an increased risk of mental trauma after abortion.
CWR: Abortion is often described as the most polarizing political issue in the United States, yet you cite polls showing broad agreement that abortion is the ending of a human life and a general desire to limit abortion in most circumstances. If that’s the case, why can’t we carve out a common ground position in our public policy?
Forsythe: The Supreme Court (and the lower federal courts) through Roe and Doe control every aspect of abortion law and policy and practice, and prevents the American people from “carving out” any “common ground position.” As a practical matter, that is being done by the states when they pass the twenty week (five month) limits, supported by majority public opinion. But the abortion proponents file a case in federal court to get them blocked. As long as Roe and Doe remain the law, the public is prevented from agreeing on any “common ground position.”
CWR: If Roe is eventually overturned by the Supreme Court, as so many pro-life advocates are hopeful for, where and when will abortion be legal? And what will the task of the pro-life movement then be?
Forsythe: If Roe was overturned today, abortion would be legal in 40 to 45 states tomorrow because there are no enforceable prohibitions on the books in those states. Pro-life legislators are preparing for the “day after Roe” by working on abortion regulations and prohibitions right now.
To read original interview, click here.