Moving the World
IN THE THIRD CENTURY BCE, the Greek scientist Archimedes stood before King Hiero II of Syracuse, explaining the physics of the lever to the king. “Give me a lever,” he said, “and a place to stand, and I will move the earth.”
With the Supreme Court’s prayer decision, the social redeemers had found their lever. They had bypassed America’s democratic platforms, where they were greatly outnumbered, and by a vote of six unelected lawyers, they had overturned nearly two centuries of precedent and tradition. And they had done so for all fifty states—at once.
People like Steven Engel and Madalyn Murray and groups like the ACLU represented a minority in America. But the Court’s power to reinterpret the Constitution was so broad, and its authority so absolute, that this radical minority was able to impose its will on all Americans. The Court gave the radicals a lever they could never have attained through the democratic process. With that lever, they moved the nation and advanced their dream of a liberated future in a way they could not have previously imagined.
The war against prayer in schools had coincided with the rise of a radical movement, which referred to itself as a “New Left,” and bore a hostility toward America that only “Old Left” Communists had manifested before. The degree of their revulsion against their country can be measured in the fact that America was then engaged in a life-and-death struggle with a nuclear-armed Communist Russia. Yet the New Left radicals openly declared their opposition to America’s anti-Communist cause. To underscore their sympathy for the Communist enemy and hatred for their country, New Left radicals identified themselves as “anti-anti-Communists,” and spelled “Amerikkka” with three “k’s” to link the entire nation to the Ku Klux Klan.
After winning the fight against school prayer, the radicals widened the war and won victories in two more landmark Supreme Court cases. These were decided on shakier constitutional grounds than the prayer-in-school decisions, sometimes even nonexistent constitutional grounds. The new decisions dramatically altered the government’s attitude toward ultimate matters of life and death. Because they circumvented the democratic legislative process, the new Supreme Court decrees may have settled the law, but they didn’t change the hearts and minds of the American people. By precluding the formation of a national consensus on these issues, they created political divisions that split the nation more deeply than at any time since the Civil War.
The first of the two cases was Griswold v. Connecticut in 1965. The suit challenged an 1879 state law prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The plaintiff was Estelle Griswold, executive director of Planned Parenthood. This organization was the offspring of Margaret Sanger, who in 1921 had created its forerunner, the American Birth Control League.
Margaret Sanger, Feminist Radical
Margaret Sanger belonged to a group of leftists who were also associated with the creation of the American Civil Liberties Union. The most prominent figure in this radical circle was Emma Goldman, known as “Red Emma.” Goldman was a revolutionary who had plotted with her lover to assassinate Henry Clay Frick, chairman of the Carnegie Steel Company.1 The plot failed, and she was deported to the Soviet Union.
In her own mind, Sanger, too, was a revolutionary, openly proclaiming that birth control was the means by which she intended to change the world. In March 1914, Sanger launched a monthly newspaper, the Woman Rebel, which promoted not only contraception but moral and political anarchy. The paper’s motto was “No gods, no masters!” Its pages bristled with such statements as, “The rebel woman claims the right to be an unmarried mother,” and asserted that women have a duty to face the world “with a go-to-hell look in the eyes; to have an ideal; to speak and act in defiance of convention.”
In a 1930 profile of Sanger in The New Yorker, writer Helena Huntington Smith noted that the Woman Rebel:
. . . mixed its birth-control propaganda with a good deal of red-flag-waving, and perorations of the “Workers of the World, Arise!” variety. She printed rousing contributions entitled “A Defense of Assassination” and “The Song of the Bomb,” and composed an editorial declaring: “Even if dynamite were to serve no other purpose than to call forth the spirit of revolutionary solidarity and loyalty, it would prove its great value.”2
Because of content like this, Sanger was arraigned on federal charges of using the mails “to incite murder and assassination” and circulate “obscene” materials (that is, materials advocating contraception). The Woman Rebel folded after nine issues.
Her 1920 book, Woman and the New Race, was a manifesto of her revolutionary program to change the world. “Diplomats may formulate leagues of nations,” she wrote, “and nations may pledge their utmost strength to maintain them . . . but woman, continuing to produce explosive populations, will convert these pledges into proverbial scraps of paper.” On the other hand, “She may, by controlling birth, lift motherhood to the plane of a voluntary, intelligent function, and remake the world.”3
Note that last phrase: “remake the world.” Margaret Sanger belonged to the company of self-appointed social redeemers. A eugenicist, she believed that the world’s problems—poverty, hunger, war—stemmed from the “fit” having too few children and the “unfit” having too many. The “unfit” were people of the lower classes and races she regarded as inferior. The disastrous situation that uncontrolled births created could be remedied, she believed, if people could be bred like animals with an eye to improving the species. She attributed the lack of proper breeding to the “sexual subservience” of women that allowed this to happen.
Focusing on women as the world’s potential saviors, Sanger believed that salvation lay in “liberating” women by endowing them with “reproductive freedom,” the ability to decide whether to have children or not. She wrote, “Even as birth control is the means by which woman attains basic freedom, so it is the means by which she must and will uproot the evil she has wrought through her submission.”4
She based the title of her 1922 book The Pivot of Civilization on the notion that birth control is the pivot or turning point by which civilization can move from barbarism and disaster to future rationality and well-being.5 Such delusional world-transforming ambitions lie at the heart of every radical cause and fuel the extremist energies and beliefs. “Reproductive freedom”—with its implications of world-transforming consequences—is still the rallying cry of the women’s movement Sanger inspired.
“Penumbras” and “Emanations”
Defending the 1879 Connecticut contraception law, and opposing the radicals, stood the Catholic Church, a formidable power in the state. The Catholic case rested on its view that the use of contraception had a harmful effect on individuals and families. The church asserted that, by detaching sex from childbearing, contraception degraded marriage “since the husband and wife who indulge in any form of this practice come to have a lower idea of married life.”6
The church also argued that legalizing contraceptives would break down the character and willpower of unmarried people, making it easier for them to give in to the urge for sex outside marriage and detached from procreation: “The deliberate restriction of the family through these immoral practices, weakens self-control and the capacity for self-denial, and increases the love of ease and luxury.”7
These claims were rooted in observations about the behaviors of individuals, and could be argued and disputed. The disagreements could have been resolved in democratic forums, as the founders intended. In a representative democracy, contending parties are forced to compromise to resolve a dispute. Compromise leads to a more tranquil resolution of quarrels. The obvious remedy for a bad law or an obsolete law is to replace it with a better law.
The plaintiffs in Griswold v. Connecticut had already tried changing the law through the legislature. This course had failed because the reformers were too small a minority to overcome the church’s influence. Estelle Griswold, Planned Parenthood, and the ACLU did not then embark on a campaign to persuade the people of Connecticut to press for repeal of the law. As radicals, they were pursuing more intoxicating goals: new rights to “reproductive freedom,” “gender equality,” the liberation of women. Such goals could not wait on the persuasion of a majority. Such goals justified an effort to impose them on the majority.
The radicals knew they had potential allies in the liberal justices who had earlier abolished school prayer without a clear precedent. And they were excited at the prospect, once again, of achieving a revolutionary goal simultaneously in all fifty states. Consequently, the Planned Parenthood legal team began developing a “constitutional” argument they could take to the Supreme Court. The argument they came up with claimed that the Connecticut law violated a constitutional “right to privacy.”8
There was no such constitutional right. There is no mention in the Constitution of a right to privacy. Nor does the Constitution refer to sexual relations between men and women. But the legal team knew that the Court had played fast and loose with the Constitution in the prayer cases and pressed ahead. The plaintiff lawyers filed suit against the Connecticut law and proceeded to make their right-to-privacy argument.
In June 1965, the U.S. Supreme Court ruled by a majority of seven to two that the right to contraception was guaranteed by a “right to privacy,” claiming that such a right could be found in the “penumbras” or shadows of other rights in the Constitution, even if the Constitution was mute on the subject itself. The Court agreed with the plaintiffs’ argument and found the Connecticut law to be “unconstitutional.”
This decision, and the reasoning behind it, produced much head-scratching among legal commentators. It was Justice William O. Douglas who wrote the majority opinion conceding that the Bill of Rights did not contain an explicit right to privacy. Nonetheless, he contended that the rights explicitly guaranteed in the Constitution had “penumbras,” created by “emanations from these guarantees that help give them life and substance.” According to Douglas, the “spirit” of the First Amendment (guaranteeing free speech), Third Amendment (prohibiting forced quartering of troops), Fourth Amendment (freedom from unreasonable searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment as applied to the states by the Fourteenth Amendment, created a general “right to privacy” that could not be unduly infringed.9
Justices Hugo Black and Potter Stewart dissented from this tortured construction. Black emphasized the fact that the right to privacy was not in the Constitution, and he specifically criticized Douglas’s interpretations of the Ninth and Fourteenth Amendments. Stewart observed that while the Connecticut statute was “an uncommonly silly law,” it was nonetheless constitutional. The problem posed by the 1879 prohibition, he said, should properly have been addressed by changing the law, instead of a fundamental change in interpreting the Constitution.
But fundamental change was what the Court majority wanted. The Griswold decision applied only to married couples. But the discovery of a “right to privacy” in the “penumbras” and “emanations” of the Bill of Rights would provide a rationale for a series of new rights that would change the American landscape for generations to come: in 1972, the right to birth control for unmarried couples; in 1973, a woman’s constitutional right to abortion; in 1977, a right to contraception for juveniles at least sixteen years of age; in 2002 a right to homosexual relations; and in 2015, a right to same-sex marriage.
Of these, the 1973 ruling in Roe v. Wade had by far the most dramatic and far-reaching impact.
The Issue Is Revolution
The Roe v. Wade decision was a logical extension of the fight over contraception. Leftists generally viewed abortion as simply another form of birth control, and another advance on the road to “women’s liberation.” But there’s obviously a profound difference between abortion and contraception. Abortion involves another party: the unborn child.
Outside the Catholic community, Griswold and other rulings on contraception had provoked very little controversy. The Roe v. Wade abortion ruling, by contrast, divided the entire nation because it involved the sanctity of life itself. The abortion controversy created intensely passionate political factions on the left and right, whose battles are still raging nearly half a century later.
Pulitzer Prize–winning author David J. Garrow has written the definitive history of the campaign behind Roe v. Wade. In Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, he locates the origins of the decision in the activities of a few radical women at the University of Texas, members of the New Left organization Students for a Democratic Society (SDS).
The leader of this group contributed an article to Austin’s leftist underground newspaper, the Rag. “We in Women’s Liberation,” she wrote, “deny any inherent differences between men and women. . . . All of us are trapped by the society that created our roles. We are questioning the ideals of marriage and motherhood . . . [and] the very society that has created these roles and values must also be questioned.”10
The idea that people are “trapped” in roles that “society” imposes on them—like marriage and motherhood—is Marxist in origin. It takes away the choices that individuals make, e.g., what roles they should accept or reject or how they should conduct them. It subordinates questions like whether to have an abortion to grandiose abstractions like “patriarchal oppression” and “reproductive freedom,” which eliminate individual circumstances and choices all together. Christians and Jews, and others not seduced by Marxist schemas of oppression and liberation, see individuals with free will who are responsible for their choices, which include whether to take the innocent life of an unborn child or not.
Saul Alinsky, the radical organizer and mentor of Barack Obama and Hillary Clinton, used to ask his new followers why they wanted to become community organizers. They would respond with idealistic claims that they wanted to help the poor and oppressed. Then Alinsky would scream at them like a Marine Corps drill instructor, “No! You want to organize for power!” That’s the way the SDS radicals at the University of Texas approached the abortion issue—as a means to power, or, in Margaret Sanger’s words, to remake the world. As a writer in the 1960s radical SDS publication New Left Notes put it, “The issue is never the issue. The issue is always the revolution.”
Sarah Weddington was a graduate of the University of Texas Law School and a friend of the campus radicals. While in law school she had become pregnant, and because this would interfere with her career, she and her husband decided to abort the child. Since abortions were illegal in Texas, they traveled across the border to the Mexican town of Piedras Negras.
Part of the campus group’s birth control project was counseling women on how to obtain Mexican abortions. They wanted Weddington to give them legal advice on whether giving this advice exposed their group to criminal prosecution. The discussions led rapidly to the idea of filing a Supreme Court suit.
To accomplish this, they needed a plaintiff—a woman who was already pregnant and needed an abortion for reasons the Court would find compelling. The problem was that most women who wanted an abortion wanted to get it over with as soon as possible. A court case, they knew, could take years. Weddington and her co-counsel found the plaintiff they were looking for in Norma McCorvey, who would become the “Jane Roe” of Roe v. Wade.
The twenty-two-year-old McCorvey had been married and divorced twice. She’d had a child by each husband and had passed both children on to be raised by relatives. Now she was pregnant again by a man she wasn’t married to. She was desperate to get an abortion. Her life was in chaos. She was a drug abuser, homeless, sexually confused, emotionally unstable, and fragile.
Sarah Weddington’s political goal was to make abortions as available as contraception, and she was willing to use any means necessary to do so, even offering to help a woman in dire circumstances and then betraying her. Because of the requirements of the legal case, instead of recommending an abortionist, Weddington persuaded the impressionable McCorvey not to abort her baby pending the Court’s decision, even though she was well aware that McCorvey would deliver her baby long before the case was concluded. As it turned out, it took three years for the case to reach the Supreme Court. In the meantime, McCorvey gave birth to a girl and put her daughter up for adoption.
Years later, Norma McCorvey had a change of heart, renounced her role in Roe v. Wade, and joined the anti-abortion camp. In 1997 she wrote an account of what she felt was the shabby treatment she had received from Weddington and her feminist colleagues:
Though Sarah had passed herself off as my friend, in reality she used me. When I sat down with her and discussed the possibility of getting an abortion, Sarah knew where I could get one because she had gotten one herself three years before. When I asked her if the court’s decision would come in time for me to get an abortion, she gave an evasive answer. And she did so with full understanding that it would come way too late to help me. If Sarah Weddington was so interested in abortion, why didn’t she tell me where she got hers? Because I was of no use to her unless I was pregnant.11
Weddington’s behavior outraged even a pro-abortion reporter for the Texas Observer, who wrote: “By not effectively informing [Norma] of [where she could get an abortion], the feminists who put together Roe v. Wade turned her into Choice’s sacrificial lamb.”
McCorvey agreed with that assessment, saying, “I never signed up to be a sacrificial lamb for anyone; I was just a young woman who needed help and turned to the wrong people. After I gave up my child for adoption, I spent years searching the faces of children I passed on the streets and in supermarkets. Is that her? I’d ask myself. Could that be my child?”12
On the Front Lines
When the Roe v. Wade decision was announced, it had a familiar ring—and a familiar majority ruling of seven to two. Once again the newly invented “right of privacy” formed the basis of the majority opinion, written this time by Justice Harry Blackmun: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”13
The liberal media, led by the New York Times, applauded the Roe decision, as they had Griswold and the Madalyn Murray result before. Dissent from the Court bench and from legal scholars, on the other hand, was as harsh as it had been when Griswold first invoked the right-to-privacy claim. One dissenter, Justice Rehnquist, pointed out that even if the Constitution contained a right to privacy—and it didn’t—an abortion was hardly a private act.14 Justice White wrote, “I find nothing in the language or history of the Constitution to support the Court’s judgment.” Renowned Yale legal scholar John Hart Ely—a supporter of legal abortion—dismissed the Court’s decision in this withering commentary:
What is unusual about Roe is that the liberty involved is accorded . . . a protection more stringent, I think it is fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right, is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included or the nation’s governmental structure. . . . It is bad because it is bad constitutional law, or rather because it is not constitutional law, and gives almost no sense of an obligation to try to be.15
In case after case—religious expression in schools, contraception, abortion—the Supreme Court handed down a string of earthshaking decisions founded on the flimsiest and even bogus constitutional reasoning. The unintended consequence of these decisions was to place the Supreme Court on the front lines of an epic culture war. It was not merely a war between right and left, but between secularism and religion, especially the Christian religion. The secular left had discovered an all-powerful instrument—the Supreme Court—with which it could impose its radical, anti-Christian agenda on an unwilling nation.
When Ronald Reagan was elected president in 1980, he was supported by a newly energized religious right. Reagan was determined to nominate Supreme Court justices who shared his anti-Roe views. “I feel very strongly about those social issues,” he said, “but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We’ve had too many examples in recent years of courts and judges legislating.”16
Judge Bork—a Casualty of the War
In 1987, Reagan nominated the conservative judge Robert Bork to the Court. Bork had a stellar reputation as one of the nation’s most brilliant legal minds and constitutional experts. After reviewing his credentials, the American Bar Association had given him its highest rating.17 Until that moment, presidential nominees were normally passed pro forma through their Senate confirmation hearings if they showed ample knowledge of the law and did not have disqualifying character issues.
But within 45 minutes of Bork’s nomination, the leading Senate Democrat, Ted Kennedy, launched a vicious attack on his character and judgment, wholly unprecedented in the annals of Supreme Court appointments. On July 1, 1987, Kennedy spoke from the Senate floor and made one outrageous statement after another, including these defamatory lies:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.18
Kennedy’s gutter attack was a calculated first strike that kicked off a multimillion-dollar leftist campaign to block the Bork appointment. This in itself was an unprecedented assault on the constitutional process, which has warped Court nomination proceedings ever since.
The day before Bork’s nomination, forty-five left-wing organizations met with Kennedy in the office of the Leadership Conference on Civil Rights. They issued a joint statement labeling Bork an “ultraconservative” and claiming his confirmation would “jeopardize the civil rights achievements of the past three decades.”19 The leftist coalition labeled Bork a “racist” and a “sexist” and lied about his legal views. In national television and newspaper ads, in mailings and press releases, they lied about his character, called him an “ideological extremist” and a pawn of the wealthy, and pronounced him unfit to be a Supreme Court justice.
There was nothing in Judge Bork’s long public career to justify these charges. Former Chief Justice Warren Burger said, “I do not think in more than fifty years since I was in law school there has ever been a nomination of a man or woman any better qualified than Judge Bork.”20 He had been Solicitor General of the United States in the Nixon administration, a circuit judge on the D.C. Circuit Court of Appeals (the second most important court in the land), and a nationally respected law professor at Yale.
Judge Bork had sat on the D.C. Circuit with Antonin Scalia and voted in concert with him 98 percent of the time. Scalia had already been confirmed to a Supreme Court seat without a dissenting vote. Yet Planned Parenthood took out a full-page ad in papers across the country, calling Bork “an ultraconservative judicial extremist.” The American Civil Liberties Union sent an urgent fund-raising telegram to supporters, alleging that “detailed research reveals Bork far more dangerous than previously believed. . . . We risk nothing short of wrecking the entire Bill of Rights. . . . His confirmation would threaten our entire system of government.”21
For twenty-five years, ever since the 1962 decision on school prayer, the Supreme Court had been the all-powerful lever that a radical minority had used to impose its will on the majority. That judicial lever had radically reinterpreted and twisted the Constitution to fit the leftist agenda. Judge Bork was an “originalist,” a legal scholar who believed in interpreting the Constitution as it was written. He opposed engaging in judicial activism and legislating from the bench. The left feared that Robert Bork’s confirmation would threaten its control of the Supreme Court and take away that lever—and possibly overturn or limit Roe v. Wade.
So, led by Senator Ted Kennedy, the left pulled out all the stops to destroy Bork’s reputation. The scurrilous attacks on his character were intended to mobilize Democratic constituents through fear (especially black voters), even before the confirmation hearings began. The smear campaign worked. Bork’s nomination was rejected by the Democrat-controlled Senate, 58 to 42. Only two Democrats voted to confirm.
The Judge Bork episode reflects the nature of the war the radicals are waging against religious liberty and Christian America. The left—and this has come to include the Democratic senators who sit on the judiciary committee—has no conscience or restraint when it comes to destroying people who stand in its way. The war began with the removal of the religious presence from America’s public schools. Since then, it has only grown more divisive and intense.