Christianity Today recently published an interview with a leader in the national pro-life movement. The title, “Roe v. Wade’s Days Are Numbered,” is much bolder and more optimistic than the content of the article. In fact, I was shocked by the profound ignorance revealed in the article. I am sorry to sound so negative, but the level of error is far beyond profound. I am literally dumbfounded to read this. It reveals that part of the mainstream pro-life movement—at the very core of its legal leadership—is literally just now waking up to 1973.
After 41 years—an entire generation—these guys are just now beginning to get on the right page factually, and yet he spins his lifetime snooze as if there had been some covert conspiracy on the part of liberals. There was not. It was done in the wide open.
The focus of the article is author Clark Forsythe. He is the “senior legal counsel at Americans United for Life.” Get that: senior legal counsel to an organization founded to debate the abortion issue publicly since 1971, before Roe even.
After 20 years of research which involved intimate access to the private papers of eight of the justices who decided Roe, this senior legal counsel concludes this:
The first shock was that the justices didn’t take the two cases—Roe v. Wade from Texas and Bolton from Georgia—to address the abortion issue or declare a right to abortion. They took them to address a mundane jurisdictional procedural issue about the relationship between state and federal courts.
First of all, anyone who thinks the Ninth and Tenth Amendments—that is, the separation of jurisdiction between states and the federal government—is a “mundane” issue should not be let out of law school, let alone achieve senior legal counsel.
Second, everyone has always known this. Everyone who has actually read the case anyway. The very first sentence of Blackmun’s majority opinion makes it clear that the issue was the constitutionality of state statutes:
This Texas federal appeal and its Georgia companion . . . present constitutional challenges to state criminal abortion legislation.
Blackmun’s intro concludes in merely the fifth paragraph declaring the Court’s job as to render “judgment upon the question whether statutes embodying them [differing views of the people] conflict with the Constitution of the United States.”
Yes, the statutes in question related to abortion, and yes the activist judges and their liberal supports were pushing for it, but no one—especially not in leadership—ought to act surprised at the actual nature of the case. Do you really think that the judicial review of jurisdictional authority in a case specifically regarding state abortion statutes is not going to have ramifications for the legality of abortion nationwide? Do you think nobody thought of this prior to the taking of the case? Come on!
Let’s be clear, whatever primary motivations could be discovered, or suppressed, there is no way this case could have been argued that would not have had profound implications on the abortion question. It was an abortion issue from day one. The question at the heart of this particular abortion question was: Can the federal government strike down these state-level statutes?
In fact, some people have been hammering this angle for decades. State-level activism actually reveals a viable path to ending abortion in many states. They have been ridiculed and stymied, sometimes actively, by forces taking the very approach of men like Mr. Forsythe. It’s almost like they don’t really want to end abortions.
It literally dumbfounds me when I read senior legal counsel say it shocked him to learn the real nature of the case! He concludes his answer to that question with this revelation of bewildering ignorance:
I had never heard that those justices originally took the case as not to address mundane procedural issues. In March  at an academic conference, I was shocked to hear abortion rights academics say, “Oh, yeah, we knew that.”
So the senior legal counsel for one of the major national pro-life organizations didn’t understand the nature of the case until last year? Had never even heard this? The liberals, on the other hand, understood it from day one. Mr. Forsythe is making this sound like it was some sneaky trick on the part of the liberals and he just discovered their little plot. Nonsense. Many people have known this all along. Many people have said it for a long time—many people in his own movement. There is something profoundly disturbing to me about this ignorance.
He also claims the liberals used a sneak attack at a vulnerable time: two justices retired, then quickly died. Forsythe says:
They did that [agreed to hear the case] in April 1971, while Justices Black and Harlan were still on the Court. Those two justices would likely have voted against a national right to abortion. Then a crisis in the Court occurred in September 1971. Black and Harlan abruptly retired due to ill health the same month. Black died within a week. Harlan died at the end of the year. That was decisive, and it reduced the number of justices to seven.
It flipped the balance of the Court. It enabled a temporary majority of four justices—Brennan, Douglas, Stewart, and Marshall—and gave them the opportunity to take advantage of the vacancies, to take the two cases, and instead use them to declare a right to abortion and to push as hard as they could to eliminate the abortion laws before President Nixon could fill the two vacancies.
I don’t see how this can be considered anywhere near accurate. It is embarrassing. Yes, Black and Harlan did leave vacancies, but 1) they were filled, 2) the decision was not made by seven justices but by all nine, and 3) there was no flip in the balance of the court.
First, the two vacancies were filled and the new Justices, Powell and Rehnquist, were confirmed on January 2, 1972, over a year before Roe was decided.
(As a side note, these were both Nixon (Republican) appointees, and one of them concurred with Blackmun in favor of abortion. Please don’t ever fall for the Republican president Supreme Court nominees myth.)
Second, both of the new justices participated in the decision. While a first round of argumentation was heard before they came in, Blackmun proposed that the case be reargued, and it indeed was on October 11, 1972. Both of the new justices participated.
Just think, after all: Roe v. Wade was a 7–2 decision. How could anyone make the mistake of claiming it was decided by only seven? That’s called fuzzy math. Real fuzzy.
Third, there was no flip in the balance of the court. In fact, even in that early first round of argument, the “temporary majority of four justices” was no deciding factor. Why not? Because after that first round, the entire seven-member court decided in favor of Roe, 7–0.
Then, after the later reargumentation which included the two new justices, one of the new Nixon appointees actually agreed with the majority, and only one dissented. One of the prior seven, Byron White, changed to his position to dissent. The result was a 7–2 split.
Even if Black and Harlan had remained on the court and both decided against Roe, you will still have had a 6–3 opinion in favor of abortion.
Mr. Forsythe, who has been active and a leader in the pro-life world for a couple decades at least, is profoundly uninformed and misguided on the very centerpiece of the abortion debate. He is so factually wrong I am dismayed that he could achieve senior legal counsel anywhere, let alone on this issue. I am stunned that factual assertions this directly backward could be promoted in a major outlet like CT. Do they not have fact-checkers and editors anymore?
Most importantly, this also raises questions as to the wisdom and viability of the policies such legal counsels have been producing and maintaining for the past 41 years. This is a question which must be looked into and engaged very critically. More on this to come, soon.