The Inside Story of Roe v. Wade with Clarke Forsythe

Abuse of Discretion

Abuse of Discretion: The Inside Story of Roe v. Wade  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 back in 1971-1973 have led to the turmoil we see today in law, 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 reviews the unintended consequences of the abortion decisions in medicine, public health, and public policy.

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.

About Clarke Forsythe

Clarke Forsythe is past-President and now Senior Counsel at Americans United for Life.  Clarke has been an attorney with Americans United for Life for nearly 28 years.  AUL’s mission is to change the law to protect human life, state by state. Clarke has a B.A. from Allegheny College, a J.D. from Valparaiso University, and an M.A. in Bioethics from Trinity International University. Clarke has been co-counsel for parties in three U.S. Supreme Court cases, has argued cases before federal and state appellate courts and has testified before Congress and state legislatures.  He has published more than a dozen professional legal articles on constitutional and bioethical issues. His latest is “A Road Map Through the Supreme Court’s Back Alley,” 57 Villanova Law Review 45 (2012), on the subject of abortion clinic regulations and the Kermit Gosnell scandal.  His first book, Politics for the Greatest Good: The Case for Prudence in the Public Square, was published by InterVarsity Press (IVP) in 2009.  His next book, entitled, Abuse of Discretion:  The Inside Story of Roe v. Wade, will be published by Encounter Books in September, 2013.  Clarke and his wife, Karen, married for 31 years, have five daughters.

Book Endorsements

When Roe v. Wade and Doe v. Bolton were first decided, leading constitutional scholars like Paul Freund, John Hart Ely, and Archibald Cox were severely critical. Though unopposed to statutory reform of abortion law, they expressed deep concerns about the legal foundations of those decisions, and the likely consequences of the Supreme Court’s sweeping judicial over-reach. Now, Clarke Forsythe has proved the worst fears of these legal titans were more than justified.  Abuse of Discretion not only exposes the legal and factual errors the Court made in 1972, but meticulously documents the far-reaching and deleterious effects of the Court’s rush to judgment.

– Mary Ann Glendon
Learned Hand Professor of Law, Harvard University

Whatever your opinions on abortion, this book raises troubling questions about the lack of information, and in some cases blatant misinformation, on which the Court decided the abortion issue in 1973. If the courts take upon themselves the authority to decide moral and medical questions of this importance, it is not too much to ask that they adhere to rigorous standards of evidence.

– Michael W. McConnell
Richard & Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School

The Supreme Court’s creation of a constitutional right to abortion in the Roe v. Wade case is widely acknowledged to be completely indefensible as a matter of constitutional law.  In this fine book, Clarke Forsythe, one of our finest constitutional scholars writing on abortion jurisprudence, explores not only the legal weaknesses of Roe and its progeny, but also the astonishing medical and public policy errors on which the decision was based.  This is a landmark work on abortion, the Constitution, and the Supreme Court.

-Stephen B. Presser
Raoul Berger Professor of Legal History, Northwestern University School of Law
Professor of Business Law, Kellogg School of Management