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Spring 2006
David Barton - 03/2006
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Many God-fearing Americans have developed a pessimistic outlook about the direction of the nation. With all 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. 1 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.

http://www.alertacademy.com/alumni/ They 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 supports parental consent, and 78 percent supports 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. 2 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, despite America's growing population, the number had fallen to 1.29 million (which is still a tragedy). Similarly, in 1990, there were 280 abortions for every 1,000 pregnancies; by 2002, it was down to 242. 3

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, it sheepishly admitted in Roe that its newly discovered "right to privacy" actually was "not guaranteed in so many words by the first eight amendments to the Constitution" 4 (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); and gazing into the nebulous shadows of those penumbras, the Court supposedly found new "zones of privacy." Although conceding that those zones 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. 5

In Roe, however, 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. 6

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 a 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. 7 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 Anthony 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 allegedly endanger the lives of millions of American women. (During the recent Samuel Alito hearings, liberal Democrat US 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. So overturning Roe will not end abortion, but it will once again place decisions about abortion in the hands of the people. 8

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

Creation vs. Evolution
"In the beginning, God created . . ." (Genesis 1:1). Frederick Nietzsche, a 19th century German atheist philosopher, famously declared that God was dead and that the Christian faith was untenable. He predicted that his belief would spread across the world and eventually envelop all of Christendom. He was wrong — especially in America.

A recent poll shows that an overwhelming 94 percent of Americans believe that God exists. Significantly, of the six percent who don't believe that, only one percent was certain about its belief; but of the 94 percent who do believe in God, 80 percent were certain about their belief. 9 In short, atheism in America is nearly non-existent while theism (a belief in God) is very strong.

Americans also strongly believe that God is the Creator. A recent Gallup poll found that only 12 percent of Americans believe that human life came into existence without God; 84 percent believe that God was involved (a Barna poll reported 87 percent); 10 and 53 percent of Americans (61 percent in an ABC poll) believe the literal Biblical account. In another poll, when questioned about the "origins of human life on earth," 57 percent believe the Bible provided the answers while only 31 percent believe that Darwin did. 11 These numbers are especially remarkable given the fact that for 38 years, the Supreme Court has allowed only evolution to be taught in public schools.

As a review of the Court's position on this issue, in Epperson v. Arkansas (1968), the Court first ruled against creation, holding that public schools must teach evolution. In Edwards v. Aguillard (1985), the Court reiterated its position, rejecting a state law requiring both sides to be taught (i.e., "balanced treatment").

Over subsequent years, states have sought to provide relief for students from this Court-mandated indoctrination. Such efforts are not surprising, for current polls show that from 64 to 68 percent of Americans want creation taught in the classroom; and strikingly, this high level of support was consistent among evangelicals, conservatives, and liberals. 12

As examples of such efforts, the Kansas State School Board determined that while students still must be taught evolution, they would not be tested on it in their exit exams; Georgia placed disclaimers in the front of its science textbooks stating that evolution was only a theory and not a scientifically-proven fact; and a Pennsylvania school district attempted to permit Intelligent Design in its science courses. Thus far, however, in every case that has reached a federal court, any attempt to lessen or weaken the teaching of evolution has been struck down.

In fact, in the recent ruling against Intelligent Design, federal judge John E. Jones iii issued a 139-page diatribe against those who had attempted to introduce the teaching of creation into schools, even calling them "liars." Significantly, the only legal issue in that case had been whether students could read a scientifically truthful statement that "gaps in the [evolution] theory exist for which there is no evidence"; but Jones disallowed that statement, decrying what he called the "breathtaking inanity" of school board members for taking such a position. 13

But despite such judicial hostility, well over 80 percent of Americans remain convinced that God was involved in creation. They continue overwhelmingly to acknowledge the truth of Romans 1:20: "Since the creation of the world, God's invisible qualities — His eternal power and divine nature — have been clearly seen, being understood from what has been made."

Public Religious Expressions
Aggressive legal attacks continue against public acknowledgments of God. Recent lawsuits have been filed against monuments and memorials with religious phrases, faith-based programs, Ten Commandments displays, "In God We Trust" on the currency, prayers at public meetings, "under God" in the Pledge, and the list goes on and on — and on and on.

Based on the number of cases filed, one could easily conclude that we live in a nation divided over the issue of public religious expressions; such a conclusion, however, would be incorrect. Recent polls continue to affirm massive support for public religious expressions.

For example, when a recent Fox News poll asked whether religion should be "excluded from public life," 81 percent said "no." And when questioned about specific issues, 90 percent support keeping "under God" in the Pledge; 76 percent support public displays of the Ten Commandments; 82 percent support voluntary school prayer; etc. 14

Americans are firmly supportive of public religious expressions; and with two new strict constructionist Justices recently added to the Supreme Court, the days of the Court's intense hostility toward religion are likely numbered. (Even though there are now only four constitutionalists on the Court, four is more than at any time in recent years — with the likelihood that one more will be nominated in the near future.)

America vs. The Courts and Media
Probably the two most willing accomplices in the war against traditional moral and religious values have been an activist judiciary and the "mainstream" media. In fact, it seems that the greater the support for a traditional value, the more likely it is to be attacked both by the media (entertainment media as well as news media) and by the courts.

One issue strongly supported by the public is that of heterosexual relations and traditional marriage. A recent poll shows that 72 percent of Americans support marriage as a heterosexual union between one man and one woman; 15 and every state that has voted on that issue has overwhelmingly reaffirmed that value.

So how does the media respond to such overwhelming support? nbc decided it needed to produce and premiere a new series: "The Book of Daniel." (As explained by the American Family Association, "NBC touted the show as a serious drama about Christian people and the Christian faith. It featured Daniel Webster as a drug-addicted Episcopal priest, his alcoholic wife, . . . a 23-year-old homosexual Republican son, a 16-year-old drug dealing daughter, and a 16-year-old adopted son who is having sex with the bishop's daughter. In the premiere episode, Daniel's brother-in-law Charlie ran off with Jesse, his secretary. Later viewers found out that Jesse was also having a lesbian affair with Charlie's wife.") Hollywood also knew how to respond to America's support for traditional sexual values: it produced "Brokeback Mountain" (an "American love story" involving homosexual cowboys) and even spent millions in lobbying to make sure that it received eight Oscar nominations and three Academy Awards.

Clearly, the mainstream media is against these traditional values; but what about the judiciary? Nebraska recently passed a marriage amendment with 70 percent support from the voters but a federal judge struck it down; 16 a California judge just dumped that state's marriage amendment; 17 and a Maryland judge just threw out that state's law against homosexual marriage. 18

With the media and the judiciary at the vanguard of the attack on cherished American values, how are citizens responding to these two institutions? Not favorably — at least according to recent polls.

Regarding the media, only a meager 28 percent of Americans expressed a "great deal" or "quite a lot" of confidence in newspapers or television reports — a record low. 19 Furthermore, between 1985 and 2002, those who thought the media to be "highly professional" declined from 72 percent to 49 percent. 20 Americans now recognize that the "mainstream" media no longer reports the news but rather selectively edits it to promote an agenda which most Americans reject.

Americans also recognize the role of the judiciary in undermining their beliefs; and their response was accurately predicted two centuries ago by Founding Father Luther Martin — a framer of the Constitution — who forewarned:

It is necessary that the supreme Judiciary should have the confidence of the people. This will soon be lost if they are employed in the task of remonstrating against [opposing and striking down] popular measures of the Legislature. 21

The judiciary is indeed losing "the confidence of the people." A recent poll showed that 76 percent of Americans disapproved of the courts' activism, believing that "the courts have gone too far in taking religion out of public life"; 59 percent even felt that the judiciary was singling out Christians for attack. 22

This widespread citizen dissatisfaction with the judiciary has resulted in strong public support for efforts to curtail judicial activism and the appointment of strict constructionists to the federal bench. However, Senate votes on judicial nominees reveal that many Senators remain at odds with the people's wishes.

Are these Senators therefore to be faulted for their opposition to the people? Not entirely. The voters who tolerate such Senators must shoulder much of the blame; for Congress does not reflect the values of all Americans but only the values of those who take time to vote (and in most federal elections, that means less than half the citizens). President James A. Garfield accurately observed:

Now, more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption. If it be intelligent, brave, and pure, it is because the people demand these high qualities to represent them in the national legislature. 23

It is time for voters to demand legislators who will not only embrace but will vote to defend the traditional values of faith and family, and who will also place on the courts the judges who respect those values.

Summary
Americans overwhelmingly support traditional Biblical values; however, those beliefs must be reflected in actions if the public policy side of the culture war is to be won. Therefore, communicate with your elected officials about your beliefs, and their votes; and if necessary, work to replace those officials that you feel do not represent your values.

I apprehend no danger to our country from a foreign foe. . . . Our destruction, should it come at all, will be from another quarter: from the inattention of the people to the concerns of their government — from their carelessness and negligence. Daniel Webster 24

No country upon earth ever had it more in its power to attain these blessings than United America. Wondrously strange, then, and much to be regretted indeed would it be, were we to neglect the means and to depart from the road which Providence has pointed us to so plainly; I cannot believe it will ever come to pass. George Washington 25

I [urge] you, by all that is dear, by all that is honorable, by all that is sacred, not only that ye pray but that ye act. John Hancock 26



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Endnotes

[1] Lifenews.com, "Gallup Poll: Americans Oppose Abortions, Want Limit but No Ban" (at http://www.lifenews.com/nat1844.html).

[2] National Right to Life, "Do the Math" (at http://www.nrlc.org/News_and_Views/November05/nv111705.html).

[3] Medical News Today, "Fewer U.S. Abortions Performed in 2002 Than in Any Year Since 1976, AGI Report Says" (at http://www.medicalnewstoday.com/medicalnews.php?newsid=27708).

[4] FindLaw, "U.S. Constitution: Ninth Amendment" (at http://caselaw.lp.findlaw.com/data/constitution/amendment09).

[5] Barron v. Baltimore, 32 U.S. 243, 249-250 (1833).

[6] Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p.374. In a letter to Judge William Johnson on June 12, 1823.

[7] Wikipedia, "Doe v. Bolton" (at http://en.wikipedia.org/wiki/Doe_v._Bolton).

[8] National Right to Life, "Associated Press and other media distort Roe V. Wade and public opinion on abortion policy" (at: http://www.nrlc.org/abortion/Roedistort112904.html).

[9] Editor and Publisher, "Gallup Poll Finds Belief in God High" (at http://www.editorandpublisher.com/eandp/news/article_display.jsp?
vnu_content
).

[10] The Barna Group, "Beliefs: General Religious" (at http://www.barna.org/FlexPage.aspx?Page=Topic&TopicID=2).

[11] Melanie Hunter, "Most Americans Feel Religion is 'Under Attack', Poll Shows," CNSNews.com; November 21, 2005.

[12] The Pew Research Center, "Religion A Strength And Weakness For Both Parties Public Divided on Origins of Life" (at http://people-press.org/reports/display.php3?ReportID=254).

[13] Townhall.com, "False judge makes mockery of case for 'intelligent design'" (at: http://www.townhall.com/opinion/columns/phylisschafly/
2006/01/02/180785.html
).

[14] Foxnews.com , "Courts Driving Religion Out of Public Life; Christianity Under Attack" (at: http://www.foxnews.com/story/0,2933,177355,00.html).

[15] Family Research Council, "The People Have Spoken," citing an April 11, 2004, LA Times poll.

[16] Focus on the Family, "Federal Court Strikes Down Nebraska Marriage Amendment" (at: http://www.family.org/cforum/fosi/government/facts/a0036204.cfm).

[17] Focus on the Family, "California Marriage Law Ruled Unconstitutional" (at: http://www.family.org/cforum/feature/a0035852.cfm).

[18] National Public Radio, "Maryland Judge Rejects Gay-Marriage Ban" (at: http://www.npr.org/templates/story/story.php?storyId=5164355).

[19] Editor and Publisher, "Gallup Poll Finds Belief in God High" (at: http://www.editorandpublisher.com/eandp/news/
article_display.jsp?vnu_content
).

[20] Journalism.org, "State of the Media: Public Attitudes" (at: http://stateofthemedia.org/2005/narrative_overview_publicattitudes.aso?
cat=7&media=1
).

[21] James Madison, The Papers of James Madison, Henry Gilpin, editor (Washington: Langtree and O’Sullivan, 1840), Vol.II, p.1166, Luther Martin during the debates of Saturday, July 21, 1787.

[22] Foxnews.com, "Courts Driving Religion Out of Public Life; Christianity Under Attack" (at: http://www.foxnews.com/story/0,2933,177355,00.html).

[23] John M. Taylor, Garfield of Ohio: The Available Man (New York: W.W. Norton and Company, Inc., 1970), p.180, quoted from "A Century of Congress," by James A. Garfield, Atlantic, July 1877.

[24] Daniel Webster, The Works of Daniel Webster (Boston: Little, Brown and Company, 1853), Vol. I, p. 403.

[25] George Washington, The Writings of George Washington, Jared Sparks, editor (Boston: Russell, Odiorne, and Metcalf; and Hilliard, Gray, and Co., 1835), Vol. IX, pp. 391- 392, to Benjamin Lincoln on June 29, 1788.

[26] John R. Musick, Great Americans of History—John Hancock (Chicago: Union School Furnishing Company 1898), pp. 116-117.

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