During his tireless campaign to promote abortion here in New York, Governor Cuomo has repeatedly alleged that his Abortion Expansion Act would do nothing other than codify the law as established in Roe v. Wade in our state law. Journalists and editorial boards have parroted this argument.
It’s essential that we grapple with this baseless claim, for several reasons. One of the best ways to do so would be to pick up a copy of Clarke Forsythe’s new book, Abuse of Discretion. In this very important work, Forsythe examines the shoddy, unprofessional way in which Justice Blackmun and his allies on the Supreme Court invented the holding in Roe without regard to basic principles of justice and fairness, and without any concern about the dangers to women that would come from legalizing abortion.
There are four important points that we should consider, so that we understand just how radical Roe really was, and thus how extreme the Governor’s proposal is.
First, we have to understand that the legal standard established in Roe was extremely liberal, and established a regime of abortion on demand, for all nine months of pregnancy, for any reason whatsoever. Also, courts used it to strike down virtually every abortion regulation passed by state legislatures.
This can be seen clearly in the history of abortion decisions after Roe — virtually no regulations affecting abortion survived judicial scrutiny, including many common sense proposals like health and safety regulations and parental involvement laws. In essence, the entire abortion industry was exempted from any accountability or oversight.
Second, we also have to recognize that even the Supreme Court eventually backed away from the extremism of Roe, and eventually adopted a standard that permitted more leeway for states to regulate abortion. This led to the 1992 decision in Planned Parenthood v. Casey. In that case, the Court transformed the applicable legal standard in a way that made it possible for states to regulate abortion in more ways (e.g., by enacting bans of partial birth abortions, clinic health and safety regulations, etc.).
As a result, the governor’s proposal would actually enshrine the high-water mark of liberal abortion law, and ignore the subsequent legal developments that have pared that standard back towards a more reasonable system. It would lock in place an abortion law that is extremely permissive and hostile to any attempt to regulate or restrict the practice in any way. It would create a system of abortion with impunity.
Third, we have to appreciate what a terrible piece of law Roe actually was — which speaks volumes about why we shouldn’t want anything to do with it here in New York. I’m pretty cynical about what goes into judicial decisions, but even I was appalled at Forsythe’s account — backed by meticulous research — of the way that the Justices manipulated, schemed, and maneuvered in preparation for the Roe decision. They heedlessly took the case under false pretenses (supposing that it was to be decided on merely a procedural point of law), and disregarded the need for any facts about the nature and impact of abortion. They irresponsibly failed to consider the devastating impact their decision would have on public health as a result of invalidating every abortion law in the nation, and removing abortion from any possibility of further regulation.
Finally, and most importantly, Forsythe exposes, based on an astonishing number of scientific and medical studies, just how bad abortion on demand has been for women’s mental and physical health. This includes short and long-term physical side effects and complications from the surgery, a correlation with a host of mental health problems, increased risks of breast cancer, plus the horrors that have occurred at unlicensed and unregulated clinics. The simple fact is that abortion is not good for women.
This is the tragically misguided abortion regime that our Governor wishes to foist upon New York. I heartily recommend that people should read Clarke Forsythe’s excellent and important book, Abuse of Discretion, to understand just how radical, and how dangerous, that would be.