Roe v. Wade, the film out last week, is a must-see. It raises questions about the Supreme Court’s deliberations in Roe v. Wade and the tragic mistake into which the justices blindly stumbled.
The movie covers a lot of ground in the back story to the Supreme Court’s 1973 decision in Roe v. Wade, which legalized abortion in all 50 states, for any reason, at any time of pregnancy. At the center of the movie is the tragic story of Dr. Bernard Nathanson, who went from abortionist to pro-life advocate due to ultrasound technology and science.
Most importantly, for the first time in a feature film, the movie raises some important questions about the deliberative process that resulted in the Supreme Court’s most controversial 20th century decision.
There is a wealth of research to back up the basic outline of the story that the movie tells about the Supreme Court’s deliberations, and that story has been told in numerous books and legal articles. Hopefully, the movie will inspire viewers to go deeper by reading Joseph Dellapenna’s Dispelling the Myths of Abortion History or David Garrow’s Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, which, though strongly pro-abortion-rights, is revealing in its wealth of information and its frank treatment of the problems with the two abortion decisions Roe v. Wade and Doe v. Bolton.
My own 2013 study, Abuse of Discretion: The Inside Story of Roe v. Wade, builds on these with the help of the original audio and transcripts of the arguments before the Supreme Court, plus the private papers of eight of the nine justices who voted in Roe and Doe, which have been released to the public over the past three decades.
The movie would have been stronger, however, if it had highlighted the skillful advocacy of Dorothy Beasley, the talented attorney who defended Georgia’s law in Doe v. Bolton. Though Sarah Weddington has been lionized by the media since 1973 because she was pro-abortion, Beasley has been recognized by legal commentators and scholars as the most articulate and skilled of all the lawyers that appeared before the Supreme Court in Roe and Doe. Beasley was an experienced Supreme Court advocate. She pointed out that the appeals were defective because there was no evidence or facts in the case. She mentioned and argued personhood. She emphasized the distinction between contraception and abortion. She dominated her arguments and was never without an adequate answer, in contrast to the two attorneys representing Texas.
Of course, Beasley ultimately lost, but the record she created in the two arguments will not be erased and stands as a prescient testimony against the problems with Roe and Doe that keep them radically unsettled today and have undermined the court’s legitimacy.
Because there was no trial or evidentiary record in either Roe or Doe, the justices were flying blind. The arguments were embarrassing to the justices. Thankfully, we have a permanent record. You can access the original audio, read the transcripts, and hear Beasley and the attorneys on both sides and decide for yourself.
The movie portrays a number of private conversations between the justices; the most important ones actually happened. The meeting really did happen between Justice William Douglas and Justice Harry Blackmun, in which Douglas threatened to publish a scorching dissent to the justices’ decision to rehear the cases in the fall of 1972 unless Blackmun held to his original vote to strike the abortion laws. As James Simon wrote after interviewing Blackmun in May 1991:
Douglas refused to withdraw his dissent until Blackmun personally assured him that his position of declaring the abortion statutes unconstitutional was firm, and that he had no intention of reversing that position after reargument. Blackmun gave Douglas that assurance…[A]s it turned out, Justice Douglas was the biggest winner of all. His prolonged tantrum had produced a firm commitment from Justice Blackmun to hold to his original position of voting to strike down the Texas and Georgia statutes.
Nevertheless, Douglas’ draft dissent, criticizing Chief Justice Warren Burger for his “manipulation” of the court’s internal process — meaning Burger’s motion to reschedule the abortion cases for a second argument in the fall of 1972 — was released to the Washington Post. Scholars generally agree that it was not Douglas but Stewart who leaked the draft dissent to damage Burger.
The movie is not without its oversights. The charge that some of the justices may have been influenced by the fact that family members worked for Planned Parenthood may be true, but the claim that that amounted to a “conflict of interest” is wholly implausible. There was no conflict of interest, as a legal matter, because Planned Parenthood was not a party in either Roe or Doe, only a friend of the court (amicus curiae).
The more important problem with Planned Parenthood’s brief in Roe and Doe was the falsehood it foisted on the court that “abortion was safer than childbirth.” Planned Parenthood cited wholly unreliable numbers from Soviet Bloc countries from the 1950s. Blackmun nevertheless adopted those data, and it served to support the superstructure of the court’s opinion in Roe, luring the court into a tragic error that the justices have never acknowledged or corrected.
Roe v. Wade, the movie, points to problems that the court has never answered and helps explain why Roe v. Wade is radically unsettled today.
Clarke D. Forsythe is senior counsel at Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013).
