Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, October 16, 2013

Rosen reviews Forsythe on Roe

Here is Jeff Rosen's helpful and I think fair review of Clarke Forsythe's new book -- "Abuse of Discretion" -- on the Roe decision.  Here's a bit:

. . . "Abuse of Discretion" provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions. . . .

Justice Ginsburg has said that the court should have ruled more narrowly in Roe, striking down
the extreme Texas law while leaving it up to the states to debate the precise
contours of the right to choose. Mr. Forsythe agrees that a narrower ruling
could have allowed the debate to continue while participants observed how public
health was affected in the 13 states that allowed abortion under certain
circumstances. A wiser and more restrained approach, in other words, might have
been "wait and see."

Mr. Forsythe is especially critical of the Supreme Court for deciding Roe on an incomplete
factual record, with no trials or evidence in the lower courts or examination of
medical evidence. "Courts should not formulate rules of constitutional law
broader than required by the facts," Mr. Forsythe concludes. Today liberals
criticize conservative justices for delivering overly broad decisions in cases
like Citizens Unitedv. Federal Election Commission, which struck down
campaign-finance restrictions on corporate spending, and Shelby County v.
Holder, which struck down a key provision of the Federal Voting Rights Act. Mr.
Forsythe's book is a useful chronicle of the most prominent case in the past 40
years when the shoe was on the other foot.

Again, I think the review is well done, and I'm very happy for Mr. Forsythe, who has been working hard on this important project.  I do have one minor quibble / question regarding the review, though.  Rosen writes:

The most surprising omission in this book is that Mr. Forsythe fails to discuss in any
detail the transformative impact of Gonzales v. Carhart, the 2007 decision by
the Supreme Court upholding the federal partial-birth abortion law, which
doesn't contain a health exception and allows restrictions on abortion both
before and after fetal viability. The Gonzales case, which Americans United for
Life has invoked in defending current laws that restrict abortions throughout
pregnancy, calls into question Mr. Forsythe's claim that the U.S. today is one
of only four nations allowing abortion "for any reason after fetal

But, the partial-birth-abortion law (if I remember correctly) restricts post-viability abortions of a certain type, not abortion itself.  So, it doesn't seem to me that the Court's decision undermines Clarke's claim about America's outlier status in terms of allowing abortions after viability.  Still, as Rosen writes, the longer-term effects of the decision remain to be seen.


Garnett, Rick | Permalink


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Our unalienable Right to Life, Liberty, and The Pursuit of Happiness has been endowed to us at the moment of our creation, which is not the moment of viability, nor is it the moment we come forth from the womb, the moment we are born. Due Process, which is binding in both Federal and State Law, must be secured and protected from the moment of our creation at conception.

Posted by: Nancy | Oct 16, 2013 10:51:52 AM

I appreciate an off-blog explanation regarding the last paragraph which w/o the proper context provided seemed to me to too narrowly cite the contours of the federal abortion ban discussed. I'll provide a new set of remarks.

The law covers a certain procedure, whenever done, but Prof. Garnett is concerned with the post-viability component in the context of the review's remarks. The review is vague on what specifically it means by "for any reason after fetal viability."

The federal ban w/o a health exception would block an abortion for the purpose of having that specific procedure. For certain girls/women, abortion might be deemed by medical experts or themselves as too dangerous w/o that safer method. So, in the U.S. "any reason" is not the rule in that sense. Anyway, of course, Roe v. Wade doesn't REQUIRE abortions to be allowed for any reason after viability. Restrictions are allowed.

The rest of my comment noted that there were twenty or so other abortion cases along with Roe (including the companion case, Doe v. Bolton) and that factual hearings were involved in some of them at least, as was the case for various contraceptive cases. Such is also the case later when specific abortion procedures were at issue, such as the next set of cases in the mid-1970s. And, Justice Blackmun spent long hours studying the facts.

Anyway, the general idea of consistently being concerned with fact-finding in constitutional cases where appropriate & a slower approach as to develop of abortion rights is not something I'm against myself. Having read about the Supreme Court of that era, I don't think Roe was particularly different in this respect, but maybe the author here is also consistent in his approach. I'll assume so.

Posted by: Joe | Oct 17, 2013 1:53:43 PM

ETA: The "for any reason after fetal viability" is particularly curious to me since it is not really credible that it is the rule in place. Medically, it would not be ethical to perform such a risky procedure unless there is a clear medically appropriate reason. Under general rules, I just don't see that as accurate, but again, it is unclear to me exactly what it means. I dare not assume too much!

Posted by: Joe | Oct 17, 2013 2:09:48 PM