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An interview with Clarke D. Forsythe, senior counsel for Americans United for Life, about current court challenges to Roe v. Wade

1/1/2022
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On Jan. 22, 1973, the Supreme Court in Roe v. Wade created a right to abortion until fetal viability and even after viability if any health concerns on the part of the mother, even anxiety, are identified. In 1992, the Supreme Court in Planned Parenthood v. Casey reaffirmed Roe but created and imposed a new “undue burden” standard for assessing abortion regulations.

At issue in Dobbs is a 2018 Mississippi state law that bans abortions, with some exceptions, after 15 weeks’ gestation — well before the current understanding of viability. An unborn baby is generally considered viable at 24 weeks, though some have survived after being born at 22 weeks or even earlier. A toddler in Alabama was recently recognized as the most premature baby ever to survive, having been born at 21 weeks and one day.

In effect, the court is being asked whether a ban on abortion before an unborn child is viable is constitutional. But answering this is not simply a matter of evaluating a line after which an unborn baby can be legally considered a person with rights to be protected. Instead, it requires that the court reevaluate the much-criticized reasoning behind the Roe and Casey decisions. This was made clear in the questions posed by several Supreme Court justices during the Dec. 1 oral arguments in Dobbs, observed Clarke D. Forsythe, senior counsel for Americans United for Life.

Forsythe, author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013), spoke with Columbia about the flawed rationale for a constitutional right to abortion and what comes next if the Supreme Court were to overturn Roe in 2022.

COLUMBIA: Why is this Mississippi law such a significant threat to Roe v. Wade?

CLARKE FORSYTHE: The Mississippi law sets up a test case because it prohibits abortion after 15 weeks, with some exceptions. It therefore “violates” the viability rule and conflicts with Roe and Casey.

But I was very pleased to hear in the Dec. 1 arguments that the justices weren’t concerned about justifying the 15-week limit. They were all focused on whether Roe and Casey made sense and whether Roe and Casey should be overturned.

If a majority were thinking about some kind of compromise, they might have asked the attorneys, “Well, how do you justify 15 weeks? How do you draw the line there?” They didn’t deal with that. Almost all the questions were about Roe and Casey — how can those be justified? Why should we keep those? There’s very little evidence from the arguments that a majority of justices want to craft a compromise. They think it’s all or nothing. Do we overrule Roe and Casey or keep them?

COLUMBIA: The concept of viability is central to the Dobbs case. Can you explain the standard of viability — and whether it is legally tenable?

CLARKE FORSYTHE: The word “viability” was not mentioned once in the two rounds of the Roe arguments in 1971 and 1972. No party of amicus (friend of the court) ever urged the court to adopt the viability rule. Justice Blackmun made it up himself in discussions with other justices behind the scenes just before the majority opinion was released. So, viability was complete dictum, meaning not necessary to the decisions in those cases.

In Casey, the court reaffirmed the “central holding” of Roe, saying that viability marks the earliest time that the state can justify a ban on abortion. But the Pennsylvania law being challenged didn’t depend on viability. So once again, it was dictum.

The court has abstractly said viability is essential, but it has never justified it. Justice Samuel Alito, in the Dobbs arguments on Dec. 1, pressed the attorney for Jackson Women’s Health Organization as to why viability is important and not merely an arbitrary line, as Blackmun himself admitted in his personal papers. She said that women have a strong interest in the availability of abortion up to viability.

But as Alito asked, if she doesn’t want the child, why does viability make a difference? Isn’t the whole point of abortion to keep the child from surviving and terminate an unwanted pregnancy? The viability rule and the rationale for it collapses. It makes no sense. It never did.

CLARKE FORSYTHE: Justice Blackmun’s majority opinion has been comprehensively criticized by scholars since 1973. In fact, it is so bad that the court basically abandoned his rationale by 1989 in Webster v. Reproductive Health Services.

I think one of the key problems that sent the court off the rails was Blackmun’s complete misunderstanding of the common law heritage of protecting human life from the earliest time that the unborn child could be proved to be alive. The common law born-alive rule, which goes back centuries, said that if a child is injured in the womb by an assault on the mother or an attempted abortion, and is then born alive and dies from those injuries, that is considered a homicide. So the born-alive rule connected the human being in the womb to the human being outside the womb, and said they are the same entity, the same being.

Even today, 31 states have a fetal homicide law that provides legal protection from conception for the unborn child outside the context of abortion. For example, if a drunk driver careens down the street and kills a pregnant woman and the unborn child, that’s a double homicide in 31 states. There’s also prenatal injury law in virtually every state, which protects the child from conception.

But Blackmun instead relied upon the odd and pro-abortion interpretation of the law from New York Law School professor Cyril Means, and he took the born-alive rule to mean that an unborn child is not a human being at any time in the womb. It only becomes a human being upon term delivery, after 40 weeks’ gestation and can never be a human being while in the womb. By getting that completely wrong, and misunderstanding the medical context, Justice Blackmun allowed abortion from conception to birth.

COLUMBIA: How does the majority opinion in Planned Parenthood v. Casey in 1992 differ from that of Roe?

CLARKE FORSYTHE: In Casey, the court abandoned Blackmun’s historical rationale for Roe v. Wade but adopted and preserved the results: basically, a right to abortion throughout pregnancy.

In effect, they said, “We can’t go back. We can’t overturn Roe because women have relied upon abortion.” That’s what the justices and the lawyers mean by “reliance interests.” But the Casey court never substituted Blackmun’s rationale with a new rationale that is rooted in the Constitution. They also established a new “undue burden” standard for testing state laws, but that has just resulted in confusion and unworkability since then.

COLUMBIA: How do you respond to those who say that overturning these decisions would politicize the court and damage its credibility as an institution?

CLARKE FORSYTHE: The campaigns of personal destruction that have been aimed at Supreme Court nominees since the 1970s or the 1980s politicized the court. Overturning Roe and Casey is not going to uniquely politicize the court. And if the court can’t justify Roe and Casey as constitutional law, and can only stick to it for political reasons, the court has already been politicized by these decisions.

There are solid reasons based on the doctrine of precedent — what we call stare decisis — why unsettled decisions like Roe and Casey should be reconsidered. Stare decisis points to not preserving them, but reconsidering them, because unsettled decisions are defective.

COLUMBIA: If Roe and Casey are thrown out, what practical ramifications would such a decision have?

CLARKE FORSYTHE: There was some talk during the Dec. 1 arguments about what should replace Roe and Casey. The justices did not seem to question the rational basis standard that the Mississippi attorney, Scott Stewart, proposed. He basically said if you overturn Roe and Casey, you should apply a rational basis test: Does a state have a rational basis for prohibiting abortion? It seems that would be the new standard.

If so, there might be future cases in which some exceptions or lack of exceptions are challenged under a rational basis standard. But a rational basis standard would allow states to prohibit abortion except to save the life of the mother. With modern medicine, this has declined to a tiny number of cases, and even then, there’s a key distinction between directly intending to kill the child and inducing a premature delivery, for example.

If the court cleanly says, “We hereby overrule Roe v. Wade, Planned Parenthood v. Casey,” it basically sends the issue back to the states, with very little, if anything, for the federal courts to do. That means whatever law is on the books in the states can be enforced. Some states — for example, California, New York and Illinois — don’t have any limits on the books. But many states have heartbeat laws and 20-week limits which could be enforced. The immediate question is going to be, will those laws be enforced? Public officials are going to be under a lot of pressure not to enforce the laws.

Congress could try to pass a federal law. I think you would see pro-abortion legislators introduce congressional bills to legalize abortion at any time across all 50 states, and pro-life legislators introduce a bill to prohibit abortion across all 50 states. But I think Congress would deadlock, leaving the issue to the states. And even if Congress passed a national abortion law, I think we would see a test case challenging Congress’ constitutional authority to legislate on abortion.

COLUMBIA: What advice would you have for members of the Knights of Columbus and their families who are engaged in the pro-life movement?

CLARKE FORSYTHE: They need to be praying for the court and the justices in coming months. And I would say “full speed ahead” with the Knights of Columbus Ultrasound Initiative. Because if Roe and Casey are overturned in 2022, state legislators and public officials are going to be on the frontlines — but so are pregnancy care centers. They will need to have the resources to reach out to abortion-minded women and provide services. So full speed ahead with the Ultrasound Initiative and supporting pregnancy care centers and their expansion.