Thorner: How ‘Roe’, a reckless and lawless decision, became law of the land (Part 2)

May 5, 2015

Monday, May 04, 2015



By Nancy Thorner – 

The fight for women’s suffrage, followed by the feminist movement, ushered in great sexual profligacy at the cultural, social, and legal levels. By 1970 abortion laws had been passed in many states under which a woman could legally receive an abortion. The result: There were court challenges to many older state abortion laws.

It was in the early 70’s that the Supreme Court agreed to hear two cases challenging laws that restricted abortion. In each case the Court affirmed the lower courts’ conclusions and struck down both statutes by a vote of 7-2, declaring the statues unconstitutional because they denied a woman the right to decide whether to carry a pregnancy to term, believing that both cases violated the privacy and liberty interests contained in the Constitution.

In case one, Roe v. Wade, the Supreme Court considered a challenge to a Texas law outlawing abortion in all cases except those in which the life of a mother was at risk. In a second case, Doe v. Bolton (1973), the focus was on a more lenient Georgia law that allowed a woman to terminate her pregnancy when either her life or her health was in danger.

The Court did address this question in its ruling: As states have an “important and legitimate interest” in protecting the health of the mother and even “potentiality of human life” inside her, when does a state’s legitimate concern for maternal and fetal protection rise to the level of compelling interest?  In addressing the issue, Justice Harry Blackmun drew up a Three Tier Trimester Framework that can be viewed here.

While the Dred Scott decision of 1858 declared a slave not a person, the 1973 U.S. Supreme Court Roe vs. Wade ruling (and its companion case Doe v. Bolton) denied fetal viability, thereby establishing “constitutionalized” abortion, having the effect of nullifying the abortion laws of all 50 states. 


Events leading up to the sweeping Roe abortion decision

Not being the standard practice for the Supreme Court to accept cases that decide political issues, what happened in 1973 to allow the Supreme Court justices to issue such a sweeping abortion decision that created a torment of unrest throughout this nation, which has allowed the Supreme Court for 42 years to assume the role of the National Abortion Control Board.

Few if any constitutional scholars think Justice Harry Blackmun’s majority opinion in Roe v. Wade(1973) was flawless.

Clark D. Forsythe called Roe vs. Wade “a reckless and lawless decision.” Forsythe shared little known details gleamed from the published papers of Supreme Court Justices as featured guest at the Republican Assembly of Lake County Ronald Reagan dinner on Saturday, April 25, at Lambs Farm in Libertyville.  His expressed thoughts now form the basis of his book, Abuse of Discretion: The Inside Story of Roe v. Wade, which lays out the many missteps, errors and fabrications made by the justices in deciding

According to Clark D. Forsythe, Senior Counsel of Americans United for Life, a serious mistake was made after the Court decided it did have jurisdiction to hear the two cases, when it proceeded to consider whether abortion was a constitutional right without a concrete factual and medical record to review in either case. Accordingly, the Court should have reached no decision, or sent the case back for trial, or taken other cases with a trial record, or at least reached a narrow decision

It was also a time of flux in the court’s makeup: Justices Hugo Black (a holdover from the Franklin D. Roosevelt administration) and John Harlan (Dwight D. Eisenhower) had resigned from the court in September, 1971and President Nixon was about to appoint two new justices which could have altered the final vote of Roe.  Although Chief Justice Warren Burger (a Nixon appointee) urged that the case by held over for re-argument until the court would be at full strength, that didn’t happen until October, 1972, with the court issuing its decision in January, 1973.  Although viability was argued — Was it present at 12 to 18 months? — nothing was agreed upon.


Changes since 1973 allow Republicans to win abortion issue 

Mr. Fosythe believes that the life issue is a winning one for Republicans.  Much has changed since 1973. The country has come far in the last 50 years.  Ultra sound has made light of the viability issue.  Since ultrasound the number of abortions and providers of abortions have dropped. Young people are also becoming more pro-life. Only 7 – 9% support abortion for any reason.

A handout at the event, “State of the States:  Where Are We Now?”, indicated that thirty-eight states treat the killing of an unborn child as a form of homicide.  Strong polling data strong shows that the American people want less abortion; want it rare; and early in the pregnancy. Capitalizing upon how the American people view abortion in 2015, Republicans would be wise to promote a message that calls for reducing abortion by making it as rare as possible.


Abortion for population control and as a personal decision

Although abortion is still viewed by the elites, including the United Nations, as a way to control population (eugenics), Supreme Court Justice Ruth Bader Ginsberg ascribes to this view. In a five-year-old interview, Ginsburg first advocated taxpayer funding of abortions. Ginsburg then followed up by saying she backed Roe to eliminate “populations that we don’t want to have too many of.”  So according to Justice Ginsburg, poor people should have abortions and not children!

According to Mr. Forsythe, abortion is linked to the fostering of mental problems.  There is also an increased chance of breast cancer after an induced abortion. Broaching the issue of population replacement, sufficient birthrates are needed to ensure the economic growth of a nation.  This nation has near replacement levels, but in Europe (consider Russia and Italy) where many women are consciously limiting the size of their families, there are negative replacement levels.  Also frowned upon is the selection of the sex of a child while yet in the womb, with abortion being the answer if the fetus is found not to be of the desired sex.  China was given as an example, where because of its one-child policy boy babies far outnumber girl baby births.

A question posed to Clarke D. Forsythe in the question and answer session was the role of men when dealing with the abortion issue.  Forsythe agreed that it was a huge social problem.  There a lack of responsibility among men who impregnate women.  As such, men must become part of the solution.

Check here to see view fetal homicide state laws. Illinois is one of 29 states that defines the killing of an unborn child at any stage of gestation as la form of homicide.

Monday, May 04, 2015 at 08:24 AM | Permalink

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