Overturning and Undermining Roe v. Wade: An Interview with Clarke Forsythe

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cdfClarke D. Forsythe (J. D., Valparaiso University; M.A., bioethics, Trinity International University) is a leading policy strategist in bioethical issues and senior counsel for Americans United for Life, a national pro-life public policy organization. He has argued cases before federal and state courts and has testified before Congress. He has published more than fifteen law review articles and book chapters on bioethics and the law. He is the author of an outstanding book, published last year by IVP: Politics for the Greatest Good: The Case for Prudence in the Public Square. (You can read the preface and introduction online for free.)

Today is the 37th anniversary of the Supreme Court’s infamous decision, Roe v. Wade. Mr. Forsythe’s chapter on Roe in Politics for the Greatest Good is called “Overturning Roe v. Wade Successfully,” and it’s the best thing I’ve seen on the topic.

Mr. Forsythe was kind enough to answer some questions about Roe and what we can do to undermine it and overturn it. For more details, I highly recommend his book.

You are a strong advocate for the overturning of Roe v. Wade. Yet you argue that unless we adopt “the virtue of open-mindedness” we won’t be able to understand the decision, its power, and its significance today. Can you explain in what sense we should be open-minded about this terrible decision?

Successful advocates have to know their opponent’s case (and its weaknesses) better than the opponent does. Those who advocate against Roe need to be “open-minded” enough to thoroughly understand the decision—including its impact and the reasons why it still stands 37 years later—better the supporters of Roe. We can’t successfully overcome political obstacles unless we thoroughly understand them. After William Wilberforce committed his parliamentary career to the goal of overturning the slave trade in 1787, he spent at least a year—maybe more—studying and understanding the slave trade. Open-mindedness is necessary for discernment.

Polling  suggests that, by and large, the American public prefers the status quo with regard to Roe. Why do you think that’s the case?

Because the majority of the public does not understand what the Roe decision did or stands for. This is thoroughly laid out in James Davison Hunter’s book Before the Shooting Begins, which exhaustively explores the 1990 Gallup Poll on “Abortion and Moral Beliefs.” Abortion advocates and politicians who support Roe have a vested interest in perpetuating public ignorance of the scope and implications of the Roe decision. It dictated one of the most extreme abortion policies for any nation in the world. There is a serious conflict between the fact that Roe enforces a right to abortion on demand from conception to birth and the fact that polls show that the majority of Americans support abortion only for “the hard cases” early in pregnancy. Some in the media still describe Roe as authorizing a right to abortion “in the first three months of pregnancy.”

I’m guessing that many readers would be surprised to read this line from your book: “Some Americans likely believe that overruling Roe means that the Supreme Court would make abortion illegal. This is seriously wrong. . . . If the Court overruled Roe today, abortion would be legal in at least forty-three states tomorrow” (p. 186). Why is this?

The simple answer is that pre-Roe state abortion prohibitions have been repealed in those states since 1973—no criminal prohibitions exist in those states. The legislatures would have to pass new prohibitions. The practical effect of “overturning Roe” means that the national right to abortion created by the Supreme Court in Roe would be reversed, and that would effectively return the issue to the legislative processes at the federal or state level. The states (or, in the opinion of some, Congress) would be allowed to pass new laws; but unless they passed prohibitions on abortion, there would be no prohibitions (in those states) to enforce. I was asked in an interview in Manhattan this week whether the overturning of Roe means that the Supreme Court would “make abortion illegal” or whether some federal law would make abortion illegal or whether state prohibitions in the 50 states would immediately go back into effect. None of those three scenarios is true, but it’s a persistent misunderstanding. The overturning of Roe would mean minimal immediate change until the states acted. Regulations now on the books in the states—like parental notice and consent laws, and clinic regulations—would continue to be enforceable.

Why should Roe v. Wade be overruled?

It authorizes the homicide of the unborn child as national policy, a national “right.” It means abortion on demand nationwide as a practical matter, and it is an unjust, unconstitutional usurpation of the people’s right of self-government to decide the abortion issue, as the people decide other controversial issues, through the normal processes of representative government. By contrast, there is no “Roe” on other controversial bioethical issues—like human cloning, stem cell research, or assisted suicide. The Court has not taken them away from the American people; we decide these issues through the public officials we elect. In addition to the questions of moral principle and constitutional authority, there is the question of governmental competence: the Court has demonstrated through its incompetence over the past 37 years that the American people can better decide the abortion issue than the Court. And for women’s health, the Court created a public health vacuum—meaning that women are not informed of the medical risks, among other things, and abortion clinics are little regulated. At the very least, that vacuum should be filled by regulations enforced by local public health officials.

You explain that as a practical matter, there are only two ways to overturn a Supreme Court decision: (1) a constitutional amendment, or (2) a Supreme Court decision that overrules a prior decision. Let’s start with the first. You say that a constitutional amendment has virtually no chance of success in the foreseeable future. Why not?

A culture that produces 1.2 million abortions a year is not a culture that will pass a federal constitutional (national) human life amendment. Before any such amendment is possible, the Roe decision will first have to be overturned, and the abortion issue returned to the normal democratic and legislative processes, and the states and public opinion will have to show progress toward a legal and political culture that will support a human life amendment. Parliament didn’t pass a prohibition on the slave trade in 1807 until Wilberforce and his allies first considerably reduced the slave trade; that was the result of numerous prudential limits between 1787-1805, including (but not limited to) the “neutral flags” tactic that was dramatized in the movie Amazing Grace.

The Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Roe declared that an unborn child is not a “person” protected under the Fourteenth Amendment. Some pro-life advocates would like to see the Court revisit this holding. Why, in your view, is that improbable?

It is not simply “improbable” but almost certainly impossible in our lifetime. That’s because every single justice since Roe has rejected it (the proposition that the unborn child is a “person” within the meaning of the Fourteenth Amendment), including the most anti-Roe justices, Justice Scalia and Justice Thomas. And Scalia and Thomas have rejected it for at least two or three reasons. First, the words “abortion” and “unborn child” are not in the Constitution; they weren’t specifically considered by the framers of the 14th Amendment. Second, Justice Scalia and Thomas believe that the abortion issue was and is an issue for the states to decide, as a constitutional matter. The third is perhaps the most powerful and the one most often ignored by pro-lifers: Scalia and Thomas want the Court out of the “abortion-umpiring business,” which they think has undermined the integrity of the Court as a constitutional and political institution. The declaration that the unborn child is a “person” within the meaning of the 14th Amendment would not extract the Court but thrust it more deeply into the “abortion-umpiring business.” So, for both constitutional and institutional reasons, Scalia and Thomas have at least implicitly rejected 14th Amendment “personhood,” and it’s almost certain that any justice nominated by even a pro-life president and confirmed by the Senate in the next 20 years will be heavily influenced by the reasoning of Scalia and Thomas. We don’t have to agree with that, but we do need to understand it.

As a practical matter, then, some President would have to nominate, and the Senate confirm, at least six justices who are willing to adopt what Justices Scalia and Thomas have rejected. That might happen in 2050, if, between now and then, Roe is overturned and a majority of states enact and enforce prohibitions on abortion, thereby exhibiting a national political culture that opposes all abortion. But that’s not political reality in 2010.

Last but not least, federal constitutional “personhood” was argued to the Supreme Court by Texas and Georgia in the oral arguments in 1971 and 1972 leading up to the Roe decision in 1973, and has been argued to the Supreme Court, in legal briefs, at least 25 times since Roe. So, it’s not a new argument that the Court hasn’t heard before.

Given that both a constitutional amendment and a personhood decision are extremely unlikely, what are incremental some steps that we can take to hallow out Roe?

By “incremental,” I assume you mean legislative means that affirmatively protect the unborn and women and that reduce abortion (in contrast to outright abortion bans that would be clearly rejected by the current Supreme Court). On the legal side, the states can enact (1) fetal homicide laws (the strongest possible legal protection of the unborn child today), (2) legislation to limit and fence in and reduce abortion, and (3) legislation to protect women’s health and ensure that women get full information about the six major medical risks to women from abortion. Political science professor Michael New’s series of statistical analyses attribute the 25% drop in abortions (from 1.6 million annually in 1992 to 1.2 million annually in 2006) to legislation of this kind. The current majority of the Court will likely uphold any regulation of abortion that makes medical sense, and there’s a lot that the states can and should do to protect women from the medical risks.

Can you give us a brief overview of your case for prudence and incrementalism in public policy as opposed to an “all-or-nothing” approach?

The key political virtue for citizens in a democratic republic is prudence. Prudence is very simply “practical wisdom,” though I like Thomas Aquinas’s definition best: “right reason about what is to be done.” His definition captures the reasoning that is at the heart of the intellectual virtue of prudence. Revered by Aristotle and Thomas Aquinas as the preeminent of the four cardinal virtues, prudence has, in our time, either been buried in clichés (“settling for half a loaf,” “getting what you can get”) or confused with other terms (moderation, caution, gradualism, incrementalism). As an intellectual virtue, political prudence challenges political leaders and voters with four questions:

  1. Are they pursuing good goals?
  2. Do they exercise wise judgment as to what’s possible?
  3. Do they successfully connect means to ends?
  4. Do they preserve the possibility of future progress when the ideal cannot be immediately achieved?

Because prudence is practical wisdom, I include two chapters on William Wilberforce and Abraham Lincoln, in which I examine their political prudence.

Zeal is important but never sufficient to make a difference in politics. Prudence is absolutely essential because it makes zeal effective in making progress and making a difference. One common reason for imprudence is ignoring or overlooking obstacles to our goals and aspirations; and zeal is often the reason why we ignore or overlook obstacles.

Let’s not put the cart before the horse. When it comes to politics, prudence judges in any particular circumstance whether an incremental strategy is the right one. Roughly speaking, I think of prudence as “strategic,” and incrementalism as “tactical.” Incremental means simply step-by-step, or, for example, limiting a social evil when complete prohibition is beyond our control. (The term is pervasive throughout politics, finance, sports, and the military.)

When it is not possible to completely prohibit a social evil, it is both moral and effective to limit it as much as possible. When the ideal is beyond our power, it is moral and effective to seek the greatest good possible. Prudence instructs us that an “all-or-something” approach is better than an “all-or-nothing” approach in politics. One of the reasons is that progress is almost always a result of momentum, and momentum—in the face of countervailing obstacles—is often produced by small victories.

In the business world, by comparison, Jim Collins’ book Good to Great captures this reality by his use of the metaphor of the fly-wheel, and the need to get the fly-wheel going by concentrated, effective, consistent action to produce the right change.

An all-or-nothing approach, by contrast, is rarely prudent (I can’t think of an example) and rarely produces change, and when nothing is the result, it doesn’t create the needed momentum to produce change. This reality is reflected in the simple truth that it’s always good (a good goal) to limit an evil.

There are many things we can and should to as advocates for life, including prayer, giving, volunteering, etc. For readers who want to make a difference in public policy with regard to abortion, what are some things they can do?

  1. Become active voters. Vote in upcoming primaries, and vote in the upcoming state and federal general elections, including the Congressional mid-term elections in November 2010.
  2. Stay informed through reading and information that’s on the Web. See e.g., www.aul.org.
  3. Get involved with a pro-life organization in your state that is actively involved in lobbying on the life issues in your state capitol this Spring.
  4. Support AUL’s work in the courts and legislatures.
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