By LAWRENCE P. GRAYSON
For most of its history, the United States has had a legal system that promoted a Christian moral culture. As recently as the early 1960s, it was illegal in the United States to have or to provide an abortion, to engage in homosexual acts, and in many states even to disseminate information about contraceptives. Then, with a heightened “sensitivity” toward discrimination and an errant notion of equality, the courts discovered an unstated right to privacy and used it in a continually expanding fashion to invalidate laws prohibiting many immoral behaviors.
In fewer than 50 years, actions that were illegal have become not only lawful, but personal rights.
Privacy is a concept that was virtually unknown in early America. It is not mentioned in the Constitution or the Bill of Rights. The primary, privacy-related protection provided was the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” With expanding populations and improvements in technology and communications, intrusions into the lives and assaults on the reputations of individuals began to increase. In an article titled, “The Right to Privacy,” published in 1890, Samuel D. Warren and Louis D. Brandeis addressed the issue and spoke of a person’s right “to be let alone.”
A legal concept of privacy soon began to take shape. It developed mainly as an extension of the common law, with the legal definition of the interest to be protected being created like a jigsaw puzzle, a piece at a time. Privacy violations through the early 1960s were categorized by one scholar in four ways: intrusion into a person’s solitude or private affairs; public disclosure of embarrassing facts about an individual; publicity placing a person in a false light in public; and appropriation of a person’s name or likeness for business purposes. For the most part, judicial findings were defined narrowly, and did not set forth general principles to cover unforeseen circumstances.
Then, a situation came to the fore which focused on a moral issue. Since 1873, when Congress enacted an anti-vice statute, known as the Comstock Law, it was illegal to mail material promoting contraception or contraceptives, for these related to a man and his mistress or a prostitute, not his wife. Although by the 1960s most states had legalized birth control, many state laws still prohibited the dissemination of information about contraception, and some even prohibited the possession of contraceptives. Connecticut was one such state, although its prohibition was rarely enforced.
A Planned Parenthood executive brought suit challenging the state law, and in 1965 in Griswold v. Connecticut, the U.S. Supreme Court found that although the Bill of Rights does not explicitly mention privacy, that right can be inferred from “penumbras” and “emanations” of other constitutional protections. It overturned the Connecticut law insofar as it applied to married persons. From a moral perspective, the court thus allowed a couple to block the procreative aspect of the marital act and focus solely on the pleasure involved. This separation would lead to future judicial declarations and greater moral decline.
In its ruling, the court not only established a constitutional basis for the right of privacy, but expanded the right to include an individual’s self-determination in making decisions about his or her life. While a right to privacy to this point in time dealt with protecting a person’s non-material properties from abuse by an outside party, it now was extended to cover autonomous behavior by the individual.
The ruling was not without an expressed concern. In a dissenting opinion, Justice Hugo Black found privacy to be “a broad, abstract, and ambiguous concept” that could allow the court “to invalidate any legislative act which the judges find irrational, unreasonable, or offensive.”
And that is precisely what happened. In 1972, the Supreme Court, so as not to discriminate against the unmarried, extended the contraceptive right to single persons. It ruled in Eisenstadt v. Baird that a Massachusetts law was unconstitutional, violating the Equal Protection Clause of the 14th Amendment, since it allowed only married couples to receive contraception. Further, while Griswold spoke of the “marital right to privacy” and the “sacred precincts of the bedroom,” Eisenstadt spoke of “reproductive rights” and a person’s “decision whether to bear or beget a child.”
With this language, the court provided the foundation for allowing the mother to determine whether the child she bears should continue to live.
Then, on January 22, 1973, the Supreme Court overturned a Texas law banning abortion in Roe v. Wade, citing Griswold and Eisenstadt in support of its decision. This judgment legalized abortion for any reason through the first trimester, with restrictions — themselves limited by an exception for maternal health — applied after that period. The same day, in Doe v. Bolton, the court defined maternal health to include the physical, psychological, and emotional well-being of the mother.
The rulings in these two cases made abortion licit almost without limitation. As a result, in the 41 years since that date, some 55 million children have been exterminated in the womb, many in brutal, barbaric ways.
It took fewer than eight years from Griswold to Roe to cause a significant deconstruction of America’s moral legislation. Soon after the Griswold decision, the use of contraceptives soared. Pope Paul VI, in his encyclical, Humanae Vitae, published in 1968, described the consequences that would follow such widespread acceptance, stating, “how wide and easy a road would thus be opened to conjugal infidelity and to a general lowering of morality.”
A war is raging against moral restraints, and the Christian militants have been losing.
But our cause is not hopeless. Similar dire situations have occurred several times. Remember the Battle of Lepanto in 1571. the marauding Turks at the gates of Vienna in 1683, the voluntary withdrawal of Russian troops from occupied Austria in 1955.
In each of these events, the Christians were victorious because the people prayed the rosary continually.
We can do the same. Will you?
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(Lawrence P. Grayson is a visiting scholar in The School of Philosophy, The Catholic University of America.)