Posted: 05/22/06

Good News from the Front Lines of the Culture War Part I

By David Barton

Many God-fearing Americans have developed a pessimistic outlook about the direction of the nation. With the publicity given to setbacks in traditional religious and moral values, many are convinced – mistakenly – that we are losing the culture war. On the contrary, we are winning in many major areas.

Abortion

In Roe v. Wade (1973), the Supreme Court established the nation's abortion-on-demand policy. Over subsequent decades, the Court reiterated its protection for abortion, including even partial-birth abortions. Yet recent statistics demonstrate not only that abortions are on the decline but also that Americans now widely reject the Court's abortion positions.

According to a recent poll, only 26 percent of Americans (and only 19 percent of youth) currently support abortion-on-demand; however, twice that many (54 percent) oppose abortions, and nearly three-fourths want abortions significantly restricted. Radical pro-abortion groups such as Planned Parenthood, the National Abortion Rights Action League (NARAL), National Organization for Women (NOW), People for the American Way (PFAW), etc., are still given a national platform by a willing media; but those groups now speak for only one-fourth of the country.

Those groups were especially vocal in urging opposition to Samuel Alito's nomination to the Supreme Court. They specifically condemned his 1991 ruling in Planned Parenthood v. Casey, in which he supported four sweeping restrictions on abortion: a 24-hour waiting period, spousal notification, parental notification, and abortion clinic reporting requirements. The media eagerly publicized the pro-abortion groups bashing Alito for this ruling, but chose not to acknowledge the strong national support for his positions. For example, 71 percent of the nation support parental consent, and 78 percent support parental notification. Counseling on the dangers of abortion (i.e., informed consent) is supported by 81 percent of the nation, spousal notification by 67 percent, and a 24-hour waiting period by 71 percent. Clearly, the overwhelming majority of Americans are now pro-life – a fact further confirmed by the steady decline in both the abortion rate and the total number of abortions in America. For example, in 1990, there were 1.61 million abortions; by 2002, the number had fallen to 1.29 million – despite America's growing population. Similarly, in 1990, there were 280 abortions for every 1,000 pregnancies; by 2002, it was down to 242.

Notwithstanding these strong pro-life advances, polling shows that pro-abortion advocates have done an effective job of confusing Americans. Therefore, because of common misconceptions about abortion, even among pro-life Americans, a brief review of the Supreme Court's three major abortion rulings will be helpful.

The original abortion case was, of course, the 1973 Roe v. Wade ruling in which the Court invoked a newly discovered "constitutional right to privacy" to strike down Texas' anti-abortion law. That "right" had first been discovered in the Bill of Rights in the 1965 case, Griswold v. Connecticut.

Significantly, "privacy" appears nowhere in the Bill of Rights, although the Bill of Rights does contain some privacy guarantees. For example, the Third Amendment secures private homes against certain military intrusions; and the Fourth Amendment secures persons and property against open-ended exploratory searches by federal officials, requiring instead that detailed search warrants be issued. This is the extent of the so-called "right to privacy" set forth in the Constitution; and despite the Court's current claims, in Roe it sheepishly admitted that its newly discovered "right to privacy" actually was "not guaranteed in so many words by the first eight amendments to the Constitution" (emphasis added).

If the Court admits that the "right to privacy" is not specifically in the Bill of Rights, then where did it find that right? According to the Court, "the Bill of Rights has penumbras" (that is, dim shadows and vague areas where things are not clearly distinguishable); gazing into the nebulous shadows in those penumbras, the Court found new "zones of privacy." Although conceding that this really had no specific basis in the Bill of Rights, the Court nevertheless asserted that these new "zones of privacy" probably could be justified by the general language of at least the Ninth Amendment, and perhaps even the Fourteenth.

In short, the Court used this so-called "penumbra" to interpret the Constitution according to its "spirit" rather than its actual words – a significant abridgment of original intent. According to Federalist #81:

There is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.

The Federalist Papers further explained that the reason that the courts were not allowed to construe the laws "according to the spirit of the Constitution" was because this would wrongly "enable the court to mold them [the laws] into whatever shape it may think" – which is exactly what has happened.

The federal court thus used the Bill of Rights to strike down state anti-abortion laws; but significantly, the entire Bill of Rights had been enacted to prevent the federal government from doing exactly what it did. As Chief Justice John Marshall had succinctly explained in Barron v. Baltimore (1833), the Bill of Rights . . . .

 . . . demanded security against the apprehended encroachments of the [federal] government – not against those of the [state] governments. . . . These amendments contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them.

In Roe, the Court not only reversed the purpose of the Bill of Rights but it also federalized the moral authority of the states, subjecting both the state and federal governments to the pro-abortion agenda of the Court. Thomas Jefferson had long before warned that such a decision would be wrong:

[T]aking from the states the moral rule of their citizens and subordinating it to the [federal government] . . . . would . . . break up the foundations of the Union. . . . I believe the states can best govern our home concerns and the [federal] government our foreign ones.

The Court struck down state anti-abortion laws, but it purportedly permitted the states to retain a slight power to regulate abortions. In the first trimester of the pregnancy, the Court allowed states to impose virtually no restrictions; in the second trimester, some regulation was permitted; and in the third trimester, states could not restrict abortion unless they made exceptions for the life and health of the mother. However, the great unanswered question in Roe was: "What does 'health of the mother' mean?"

The Court answered that question in Doe v. Bolton (issued the same day as Roe). In that case, the Court struck down Georgia's law prohibiting abortions except in cases of rape, severe fetal deformity, or severe or fatal injury to the mother. The Court negated that law because it lacked an exception for the health of the mother, which, according to the Court, must include such factors as the woman's age as well as her "physical, emotional, psychological, [and] familial" well-being. Abortion-on-demand for any reason therefore became the national policy, because under the Court's definition of "health of the mother," every pregnancy was abortable since it might have a potential "emotional" or "psychological" effect on the mother.

The Court's third landmark abortion ruling (Planned Parenthood v. Casey, 1992) addressed a Pennsylvania law that severely restricted abortions. New appointees had been placed on the Court, and the case presented a welcome opportunity for this new Court to overturn or modify Roe. Regrettably, however, the Court not only refused to overturn Roe but actually strengthened it. (Significantly, the Supreme Court originally voted 5-4 in that case to overturn Roe, but Justice Antonin Kennedy switched his vote and thus reversed the outcome. I was told of Kennedy's switch by those inside the Court, and the recently released papers of now deceased Justice Harry Blackmun confirm Kennedy's switch. It was because of Kennedy's repeated tendency to change his mind that he was dubbed "Flipper" by staff at the Court.)

In the Casey decision, the Court strengthened its protection for abortion by declaring that any restriction which presented an "undue burden" on a woman's "right" to an abortion would be prohibited. It was the Casey "undue burden" standard, combined with the Doe "health of the mother" standard, that was used by the Court in 2000 to strike down the ban on partial-birth abortions.

Even though the Court supports abortion at every stage of pregnancy, much of the nation still holds two misconceptions about the legal status of abortion. This is why a large majority of Americans – including the two thirds of this nation that want abortions greatly restricted – still oppose an absolute ban on abortion. What are the two misconceptions that help keep abortion-on-demand legal?

First, the public wrongly believes that the Court permits abortions only in the earliest weeks of a pregnancy and not throughout the full pregnancy. Second, the public has often been told, and now wrongly believes, that a repeal of Roe would outlaw all abortions and thus would allegedly endanger the lives of millions of American women. (During the recent Samuel Alito hearings, liberal Democratic U. S. Senators and a sympathetic media frequently repeated this false charge.)  To the contrary, a repeal of Roe would only return the abortion issue to the state level to be decided there. Overturning Roe will not end abortion, but it will once again place decisions about abortion in the hands of the people.

The bottom line – and the good news – is that America is becoming strongly pro-life.

By David Barton Click here for bio and archived articles