Descriptors such as "bait-and-switch" and "sleight-of-hand" aren't often associated with judicial rulings – but that's exactly what happened along the road to legalized abortion on demand and the resulting assault on the family.
After Roe v. Wade plaintiff Norma McCorvey became a Christian and revealed that she had not been gang raped as her legal team had claimed, many Americans came to understand that this landmark ruling that legalized abortion was based on a lie.
So was the companion case of Doe v. Bolton. Plaintiff Sandra Cano said her attorneys tricked her into signing a statement seeking an abortion, something she says she did not want. In 2005, she told a congressional hearing, "Doe v. Bolton is based on a lie and deceit. It needs to be retried or overturned."
But the deceptions didn't begin with Roe and Doe. The Supreme Court's creation and abuse of a "right to privacy" not found anywhere in the Constitution was hatched in a series of cases in the mid-1960s and early '70s.
Here's how they pulled it off. In Griswold v. Connecticut (1965), the Court struck down a Connecticut law forbidding contraception sales even to married couples. The justices could have done so on the grounds that it was an anachronistic law that few observed or enforced. Instead, they chose to create a constitutional "right to privacy," basing it on the sanctity of marriage and grounding it in the heretofore unknown "penumbra" of constitutional rights.
"We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school systems," wrote Justice William O. Douglas in Griswold. "Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred."
Ironically, the four-time-married Douglas went on to do as much as any justice to demolish protections for life, marriage and decency.
If the Court had stopped at Griswold's celebration of marriage, it might even have shored up the status of the family in the nation's laws. The Court "could have filled the gap left by the Founding Fathers [who made no mention of family in the Constitution] by serving as the starting point for a new family-oriented reading of the Constitution," the late Michael Schwartz wrote in The Supreme Court of the United States versus the American Family. "But that is not how constitutional interpretation developed."
Instead, the justices engineered the most consequential bait-and-switch in legal history: They shifted the moral capital of the "sanctity of marriage" to unmarried relationships and then to individuals and finally to "marriages" without even a bride.
In 1972, another contraception case made it to the high court. Bill Baird, who went on to run abortion clinics, challenged a Massachusetts law against selling birth control devices to unmarried couples. In Eisenstadt v. Baird, the Court dishonestly appropriated Griswold's recognition of the sacredness of marriage.
Mr. Schwartz explained: "The right of privacy was invented as an expression of the sanctity of marriage and rooted in the priority of the family over the state. In Eisenstadt, the Court threw that doctrine overboard, and made privacy a purely individual right."
The very next year, in Roe v. Wade and Doe v. Bolton, the Court once again misused the "right of privacy" established through the sanctity of marriage in order to strike down all state laws against abortion.
The radical nature of Roe and Doe went even beyond establishing a "right" to abortion. It launched a legal revolution against the family.
"The legalization of abortion represents an extreme form of imbalance in the relation of the individual to the family, permitting one family member to kill another," Mr. Schwartz wrote, "and it marks the first instance in our legal history since the Roman Republic that intra-family killing has been tolerated by the public authority."
Using more legal sleight-of-hand, the Court obliterated fathers' rights to have a say in whether their sons or daughters were aborted. And in another series of cases, the Supreme Court created "children's rights," including the right of a minor girl to obtain an abortion without the consent of her parents or in some instances without even notifying them.
By 2015, after reducing families to an afterthought, the Court was ready in Obergefell v. Hodges to create a new constitutional "right" to same-sex "marriage," the final assault on the family.
With the "right to privacy" and individual autonomy firmly established, people also began to assert the "right" to kill themselves or assist others to do so. By 2017, several states – California, Colorado, Montana, Oregon, Vermont and Washington – plus Washington, DC had legalized the brave new world of physician-assisted suicide, which is ripe for abuse.
When tens of thousands of people head up Constitution Avenue to the Supreme Court this Friday in the 45th annual March for Life, they will be asking, once again, that our leaders find a way to reestablish a culture of life by righting terrible wrongs that are based on lies and deceit.
A good start would be overturning Roe v. Wade.
Robert Knight is an author and Washington Times contributor. This column first appeared on The Washington Times' website.
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