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Roe and Abuse of Discretion


Obviously no one against abortion likes Roe v. Wade, the 1973 Supreme Court ruling that made abortion on demand the law of the land, and has led to fifty-five million legal abortions in the forty-one years since.

But listen to a few lines from those who call themselves “pro-choice.” Harry Blackmun, the Supreme Court justice who actually wrote it, called the court’s decision to even hear Roe a “serious mistake.” And before joining the court, current Justice Ruth Bader Ginsburg said Roe was not “measured” because it “invited no dialogue with legislators.”

In his new book, “Abuse of Discretion,” Clark Forsythe digs into the nuts and bolts of the decision like no book I’ve ever encountered. Forsythe, the former president and current senior counsel of Americans United for Life, is well versed in the ugly causes and even uglier consequences of Roe v. Wade, and he joined me to talk about it on the current edition of “BreakPoint This Week.”

In “Abuse of Discretion,” Forsythe shows that Roe v. Wade and the companion case, Doe v. Bolton, really were the result of a perfect storm. Did you know these two landmark cases were only initially supposed to resolve limited, technical questions that did not require a trial or evidence? Yet with a simple majority of the justices, America suddenly had the most liberal abortion law in the world, with virtually no evidentiary consideration.

Blackmun himself wanted a narrow, temporary ruling, but Justice William O. Douglas threatened a scathing dissenting opinion. So Blackmun capitulated, creating a new radical right for reasons that had little to do with the law, morality, or even science. One can almost picture Blackmun, like Pilate, washing his hands of the matter after Roe was handed down.

Further, the decision hinged on the arbitrary concept of “viability,” the point after which the state could restrict abortion. Forsythe argues, in the words of "Journal" reviewer Jeffrey Rosen, “that the justices and law clerks, essentially pulled the viability standard out of a hat.”

This history undermines the Court’s later claim in Planned Parenthood v. Casey, which upheld Roe, that the court’s adoption of the viability standard was “a reasoned statement, handled with great care.”

Forsythe argues that Roe v. Wade, rather than promoting women’s health as advocates of legal abortion always claim, instead stripped women of vital health protections. The horrific happenings at Kermit Gosnell’s unregulated abortion mill are just one grisly example of this. Studies have also shown a link between abortion availability and domestic violence.

Even Janet Yellen, just named by President Obama to head the Federal Reserve, has said that “the legalization of abortion reduced women’s ability to withhold premarital sexual favors from men.”

There have been other horrific results of Roe, of course. “The United States is one of approximately ten nations that allow abortion after fourteen weeks of gestation.” Forsythe writes. “… When it comes to allowing abortion for any reason after viability, however, the United States is joined only by Canada, North Korea, and China.” We and Canada should be ashamed of the company we keep.

Yet the pro-life movement, galvanized by this foolish and unjust decision, has gained momentum. Since 1990, the number of abortion clinics has fallen by seventy-three percent, while the abortion rate has declined as well. The number of Americans who identify as pro-life is now a majority, and state restrictions on abortion are multiplying.

So the cultural battle is far from over. With outstanding books such as “Abuse of Discretion” on our side, we can win more hearts and minds. You’ll find info about this book, as well as my interview with Clark Forsythe, at

BreakPoint is a Christian worldview ministry that seeks to build and resource a movement of Christians committed to living and defending Christian worldview in all areas of life. Begun by Chuck Colson in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today’s news and trends via radio, interactive media, and print. Today BreakPoint commentaries, co-hosted by Eric Metaxas and John Stonestreet, air daily on more than 1,200 outlets with an estimated weekly listening audience of eight million people. Feel free to contact us at where you can read and search answers to common questions.

John Stonestreet, the host of The Point, a daily national radio program, provides thought-provoking commentaries on current events and life issues from a biblical worldview. John holds degrees from Trinity Evangelical Divinity School (IL) and Bryan College (TN), and is the co-author of Making Sense of Your World: A Biblical Worldview.

Publication date: January 21, 2014

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