In the clash over Robert H. Bork’s nomination, Joe Biden’s moderate instincts defined a winning strategy.
Joseph R. Biden Jr. was on the brink of victory, but he was unsatisfied.
Mr. Biden, the 44-year-old chairman of the Senate Judiciary Committee, was poised to watch his colleagues reject President Ronald Reagan’s formidable nominee to the Supreme Court, Robert H. Bork. The vote was unlikely to be close. Yet Mr. Biden was hovering in the Senate chamber, plying Senator John W. Warner of Virginia, a Republican of modestly conservative politics and regal bearing, with arguments about Bork’s record.
Rejecting a Supreme Court nominee was an extraordinary act of defiance, and Mr. Biden did not want a narrow vote that could look like an act of raw partisan politics.
“We already had Bork beat,” said Mark Gitenstein, who was then chief counsel to Mr. Biden’s committee. “But Biden really wanted to get Warner because he had such stature.”
Mr. Biden’s entreaties prevailed: Mr. Warner became one of 58 senators to vote against Bork, and one of six Republicans.
The Senate’s resounding rejection of Judge Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons. The vote ensured that the court’s swing seat would not go to a man with a long history of criticizing rulings on the rights of African-Americans and women. It also enraged a generation of conservatives and transformed the judge’s name into an ominous verb: Fearful of getting “Borked,” no nominee would ever again speak so freely about his views as Bork did.
The Senate’s resounding rejection of Judge Robert H. Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons.
It was also a personal turning point for Mr. Biden. In the Bork debate, Mr. Biden’s political ethos found its most vivid and successful expression.
A review of Mr. Biden’s conduct in the debate — including interviews with 16 people directly involved in the nomination fight, and a review of the hearings and Mr. Biden’s speeches — yielded a portrait of Mr. Biden as an ambitious young senator determined to achieve a vital liberal goal by decidedly unradical means.
The strategy Chairman Biden deployed then is the same one he is now proposing to bring to the White House as President Biden.
In the 1980s, as today, he saw bipartisan compromise not as a version of surrender, but as a vital tool for achieving Democratic goals.
Then, as now, Mr. Biden saw the culture and traditions of the Senate not as crippling obstacles, but as instruments that could be bent to his advantage.
And in both defining moments — his leadership of the Bork hearings and his third presidential campaign — Mr. Biden made persuading moderates, rather than exciting liberals, his guiding objective.
Mr. Biden, whose campaign declined to make him available for an interview, has strained to defend this approach in the 2020 presidential primary, offering only a halting rationale for a political worldview that other Democrats see as out of date. His rivals have branded him as a timid and even reactionary figure — a creature of the Senate cloakroom who partnered with former segregationists to pass draconian anti-crime legislation and joined with the business lobby to tighten bankruptcy laws.
And Mr. Biden’s opponents point not to the Bork hearings but a different confirmation battle as proof that his instincts are flawed. Four years after Bork was defeated, Mr. Biden would again take an accommodating approach to his Republican colleagues during Justice Clarence Thomas’s confirmation hearings, allowing harsh and invasive questioning of Anita Hill, the law professor who accused the nominee of sexual harassment. Mr. Biden would later express “regret” for the treatment she endured.
But he has never regretted the conciliatory style that led him to triumph against Bork. In that process, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans — men like Mr. Warner.
Now 92, Mr. Warner said in an interview that his memories of the Bork hearings had grown foggy over the years. But two impressions were indelible, he said. The first concerned Reagan’s nominee: “I never encountered a man with a shorter temper,” Mr. Warner said.
The second concerned the caliber of the Senate’s deliberations.
“It was a real, solid, good debate, led by Biden,” Mr. Warner said. “He showed extraordinary leadership.”
The outcome was not foreordained, for either Bork or Mr. Biden. The debate unfolded at a moment of humiliation for Mr. Biden, whose first campaign for president unraveled as the Bork hearings approached their climax. And the judge was no timid adversary, as the journalist Ethan Bronner wrote in a book on the nomination.
“Robert Bork,” Mr. Bronner wrote, “was a man of war.”
Mr. Biden was seated behind a desk in a spacious living room adjoining his study at his Wilmington, Del., home. A few aides sat or stood around the room, where pizza was in generous supply. Squared off against Mr. Biden was Robert H. Bork — or rather, a convincing simulacrum played by the constitutional scholar Laurence Tribe.
Mr. Tribe and Mr. Biden would spar for hours in a series of sessions that August, joined occasionally by other legal experts who would help Mr. Biden hone his queries on subjects from antitrust regulation to sexual privacy.
“Biden’s questions were really smart, and they also needed some sharpening,” Mr. Tribe said in an interview, citing Mr. Biden’s tendency to “ask one thing and mean something slightly different.”
Mr. Biden came to those training sessions by a jagged path, shaped by pressure from progressive activists and the delicate politics of the Judiciary Committee. He was arming himself to oppose Bork, but not with the methods of the left.
On the day Bork was nominated, liberals viewed Mr. Biden with suspicion. Taking over one of the Senate’s great committees at a boyish — for the Senate — age of 44, Mr. Biden had already split with progressives on the issue of busing as a means of desegregating schools. Until Bork, the authors Michael Pertschuk and Wendy Schaetzel would write, Mr. Biden “had been reluctant to challenge Reagan’s transformation of the federal judiciary.”
The previous November, the soon-to-be chairman had given liberals new reason for concern, suggesting to The Philadelphia Inquirer that he might one day vote to put Bork on the Supreme Court, should he be Reagan’s next nominee.
“I’m not Teddy Kennedy,” he told the newspaper.
When Justice Lewis F. Powell Jr., a flexible conservative, resigned from the court in late June, Mr. Biden found himself in the shadow of Kennedy, the party’s leading liberal, and laboring to reconcile his own moderate instincts with a mood of alarm on the left. When the White House announced Bork’s nomination on the first day of July, Kennedy delivered a thunderous warning from the Senate floor: In “Robert Bork’s America,” Kennedy said,
- “women would be forced into back-alley abortions,
- blacks would sit at segregated lunch counters.”
The scathing address was a call to arms for the left, and it helped animate a coalition of progressives — led by feminists, civil rights activists and labor unions — that applied pressure to undecided senators throughout the summer.
“His record was so extensive, and it touched almost every issue of importance to American life,” said Nan Aron, a leading anti-Bork activist. “It wasn’t simply a single issue that caused people to be alarmed.”
Another purpose of Kennedy’s speech, his allies have said, was to ensure Mr. Biden would not cave.
“One of the reasons for ‘Robert Bork’s America’ was to freeze Biden,” Jeffrey Blattner, a Kennedy aide, would say decades later, in an oral history for the Edward M. Kennedy Institute for the United States Senate. “He’s running for president. We didn’t want to leave him any choice.”
Mr. Biden quickly aligned himself with Kennedy, and, at his liberal colleague’s urging, secured an agreement from Senator Strom Thurmond — the 84-year-old former segregationist who was the Judiciary Committee’s top Republican — to delay Bork’s hearings until September.
“Biden was under a lot of pressure, particularly from the liberal senators,” said former Senator Dennis DeConcini of Arizona, a centrist Democrat who said he began the confirmation process favorably disposed toward Bork. “At first, I was leaning strongly to vote for him.”
Even as he pledged to oppose Bork, Mr. Biden made clear to progressive leaders in a private meeting that he saw his role as sharply distinct from theirs. He would play an inside game aimed at swaying Senate moderates, starting with the four undecided members of his committee:
- Mr. DeConcini and two other Democrats,
- Robert C. Byrd of West Virginia and
- Howell Heflin of Alabama, and a Republican,
- Arlen Specter of Pennsylvania.
Ralph Neas, a civil rights activist who joined the liberals’ initial meeting with Mr. Biden, said the chairman conveyed “that he would take the lead and we would try to put together a bipartisan coalition.”
“Biden’s street cred with a lot of the centrists was quite high,” Mr. Neas said.
Mr. Biden was blunter with his aides: He would not adopt Kennedy’s rhetoric or make abortion his central cause. According to a book Mr. Gitenstein published in 1992 about the confirmation fight, Mr. Biden feared Bork would overturn Roe v. Wade but told aides he did not see the case as “great constitutional law.” More disturbing to him — and, he believed, more likely to sway undecided voters — was a Connecticut case on contraception that revealed Bork’s doubts about a broader right to privacy.
“It really concerns me more than abortion,” Mr. Biden is quoted as saying in the book.
In their sessions, Mr. Tribe said, the future vice president wrestled not just with Bork’s record but also with the idea of disqualifying nominees based on individual issues.
“I remember pushing back on Biden, saying, ‘If you think Roe v. Wade really ought to be the law of the land, shouldn’t that count?’” Mr. Tribe recalled. “He said, ‘Yes, it should count a lot, but I still don’t want to have a flat litmus test.’”
Mr. Tribe remembered thinking: “This guy’s a little bit more cautious than I am. But that’s fine, he’s playing a different role.”
Mr. Biden’s self-assigned role was readily apparent as the Bork hearings began in mid-September. Beaming down at the judge from a crowded dais, Mr. Biden praised him as man of towering achievement and “provocative” views. Flanked by Kennedy at one elbow and Thurmond at the other, Mr. Biden said the hearings should not be “clouded by strident rhetoric from the far left or the far right.”
“Anytime you feel you want to expand on an answer, you are not bound by time,” Mr. Biden encouraged Bork, adding in a tone of levity, “Go ahead and bog us down.”
In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.
In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.CreditJose
The judge, bearded and broad shouldered, did not recognize the trap.
Few men could have been more prepared to face a constitutional interrogation. A former Yale Law School professor who served as the country’s solicitor general and, amid the maelstrom of Watergate, as acting attorney general, Bork brought to the hearings a reputation for quick eloquence and utter mastery of the law.
Mr. Biden had no such reputation, and the columnist George F. Will spoke for much of Washington when he predicted Bork would be “more than a match for Biden.”
The chairman gave his colleagues wide latitude to question Bork, whose testimony consumed five days. It culminated in an unusual Saturday hearing that was dominated by an hourslong debate between Bork and Specter, a former district attorney who frequently rode the Amtrak rails with Mr. Biden, about the meaning of constitutional intent. Mr. Biden had offered Specter half an hour for his questions; when Specter balked at the time limit, Mr. Biden relented and opened the way for a crucial exchange.
“His debate with my father on constitutional law did reveal him to be not sufficiently respectful of precedent, which pushed my father against him, and pushed other swing senators against him,” said Shanin Specter, the senator’s son and a Philadelphia lawyer. “It would not have happened if Biden, as chair, hadn’t permitted the hearings to go exactly as long as they needed to go.”
Mr. Biden sought, too, to quash attacks on Bork that he saw as risking political backlash. He shot down a plan to ambush Bork with a recording of a speech he gave in 1985, insisting on sharing it with the judge before airing it in the committee. And Mr. Biden and his aides refused a request from a number of prominent activists, including Ralph Nader, to testify in opposition to Bork. The left was applying powerful pressure from outside the Senate, but Mr. Biden preferred that its leaders stay there — on the outside.
Ms. Aron, who would later clash with Mr. Biden over the nomination of Justice Thomas in 1991, said the combination of popular pressure on the Senate and Mr. Biden’s high-minded hearings doomed the nominee.
“What defeated Robert Bork was public pressure,” Ms. Aron said. “But what allowed the public to engage was a review of Bork’s record.”
And Bork did himself few favors: While he assured senators, in his rumbling voice, that he would not overturn rulings capriciously, he struggled to explain away past comments decrying “dozens” of shoddy Supreme Court decisions or deriding the Civil Rights Act of 1964, or ridiculing the concept of a constitutional right to privacy. He startled even some allies by describing as “troublesome” the reasoning behind a 1954 case desegregating public schools in the nation’s capital.
In his questions, Mr. Biden posed as a mere mortal grappling with the ideas of a giant.
“Clearly, I do not want to get into a debate with a professor,” Mr. Biden stressed, prodding Mr. Bork about the Griswold v. Connecticut case that ended a state prohibition on birth control: “As I hear you, you do not believe there is a general right of privacy that is in the Constitution.”
“Not one derived in that fashion,” Bork said of the popular decision. “There may be other arguments, and I do not want to pass upon those.”
Watching Bork’s testimony, his political backers knew he was losing. He was articulate, but he was also argumentative. His knowledge of the law was powerful, his political antennae were not.
“I can’t blame Biden,” reflected Tom Korologos, the Republican lobbyist tasked with ushering Bork onto the court. “I blame Bork and Specter, and the other senators, for going on and on.”
Every swing vote on Mr. Biden’s committee swung against Bork, sending him to the floor with a negative recommendation by a vote of 9 to 5. The White House offered Bork the chance to withdraw; he chose martyrdom instead.
His supporters gave him that much, accusing Bork’s opponents of bowing to activists like Mr. Neas and Ms. Aron. “The man’s been trashed in our house,” Senator John Danforth, Republican of Missouri, lamented on the Senate floor. “Some of us helped generate the trashing. Others of us yielded to it.”
Mr. Biden called Mr. Danforth’s complaint an insult to the Senate.
“I have a higher opinion of the ability of my colleagues to do what’s right than, apparently, the senator from Missouri does,” he said.
Mr. Biden’s approach to the Bork nomination was a legislative and political success, one he experienced as personal redemption after his presidential candidacy crumbled. It brought to maturity the strategic instincts that defined him in subsequent battles — including his contested stewardship of the Thomas hearings — and that shape his candidacy today.
The fate of Mr. Biden’s campaign, and perhaps a future presidency, may hinge on whether that version of leadership, defined by collegiality and adherence to procedure, can inspire Democrats and coax cooperation from Republicans. In the presidential race, there is no Ted Kennedy to sound a trumpet for the left while Mr. Biden plays a methodical inside game. And there are no Republicans to be found in the Senate like Specter, who eventually, at Mr. Biden’s urging, quit the G.O.P. to become a Democrat before his death in 2012.
Still, Mr. Gitenstein said he had encouraged the former vice president to draw public attention to his role in the 1987 court fight. The defeat of Robert Bork averted a solidly conservative majority, handing the court’s decisive seat to the more pliant Anthony M. Kennedy, who became a decisive figure in a generation’s worth of eclectic rulings on subjects from campaign finance and union rights to abortion and the legal definition of marriage.
“I don’t think he or anyone else makes enough of the fact that, but for Biden, Roe would be dead 30 years ago, and, but for Biden, we wouldn’t have the gay marriage decision,” Mr. Gitenstein said. “I’ve talked to him about it. He’s got so much on his platter.”
Mr. DeConcini, who at 82 is a supporter of Mr. Biden’s campaign, said he hoped a strategy of moderation could prevail again.
But he admitted to having doubts.
“I’d like to think so, I really would,” Mr. DeConcini said. “I’m just not sure.”
The flawed assumption underlying both sides of the intra-conservative debate kicked off by Sohrab Ahmari
We get your holidays off. Most TV shows have a Christmas episode. I’ve heard about “the spirit of Christmas” more times than I can count. There are churches everywhere. The most-watched news network and some of the most popular websites denounce “happy holidays” while issuing fever dream warnings of Sharia law. Visit Israel or a Muslim country and you’ll see what it looks like when Christianity is culturally weak.
But that’s not the type of power culture warriors and defenders of conservative Christianity are talking about.
To get to the supposed crisis, we have to dismiss a lot of political and cultural power. Even then, examining specific instances of encroaching secular culture shows that “no longer dominant in every area, but still powerful overall” is more accurate than “under immense threat and headed for annihilation.”
The Actual Threat
There are, of course, incidents of religious Americans facing discrimination. There are also incidents of non-religious Americans facing discrimination. The question is not “do religious conservatives face any opposition?,” but whether that opposition is so powerful, and conservative Christians so weak, that the threat is existential.
Consider some of the most prominent cases:
Universities and Free Speech
David French cites a lawsuit in which he defended “a conservative Christian professor who was denied promotion because of his faith.” That’s wrong — it’s religious discrimination — and he won in court. There are many universities where no professors were denied promotion because of their religion, and others, such as Bob Jones in South Carolina, that are allowed to utilize religious criteria.
French also cites the work of the Foundation for Individual Rights in Education (FIRE), which he used to lead. I share some of their criticisms regarding campus censorship — see, for example, my article on free speech — but it hardly amounts to social conservatives’ impending annihilation.
As an example of threats to free speech on campus, FIRE maintains a database of disinvitations, in which activists tried to prevent someone they dislike from speaking. From 1998 through 2019, FIRE identifies 427 incidents. Of these, 257 cases involve protests coming from the speaker’s left (not all of which involve religion). That means an average of 11.68 cases per year over 22 years. With about 5,300 colleges and universities in the United States, about 0.2 percent see a disinvitation attempt prompted by the left in a given year.
That’s not the only illiberal activity on campus — and I think many of them deserve criticism — but an existential threat it is not.
Obamacare required health insurance plans to cover contraception, and the owners of Hobby Lobby, a privately-held chain of stores, objected. They’re conservative Christians, and argued that being forced to pay for contraceptives violated their religious freedom.
But they weren’t forced to pay for contraceptives. They compensated their employees with health insurance, and then, if the employee chose to buy contraceptives, the insurance company paid for it. Millions of employees spend their paychecks on things their employers disapprove of, but the employers can’t stop it. There’s no reason non-cash compensation should be different.
What the owners of Hobby Lobby wanted is the type of power Ahmari craves — the ability to impose religious beliefs on others. No one forced them to use contraception. No one even forced them to buy someone else’s contraception. But the possibility that employees might choose to use their health insurance for something the employers didn’t like was too much.
In a 5–4 decision, the Supreme Court ruled in favor of Hobby Lobby. As a result, if you work for a private company, and the owners are religious, they can tell you what you can and cannot do with some of your compensation.
You may be more sympathetic to Hobby Lobby’s position than I am. Either way, no existential threat here.
Gay Wedding Cakes
The 2015, 5–4 Supreme Court decision in Obergefell v. Hodges legalized same-sex marriage in the United States. That’s probably the biggest example of social conservatives losing the power to impose their beliefs on others. However, while no church has to perform a gay wedding, and no one has to attend any wedding if they don’t want to, legalization created some situations that impose on religious Americans.
Should religious wedding vendors have to sell to gay couples? It’s a fascinating question, because two fundamental rights come into conflict: equal protection for the couple; freedom of religion for the vendor. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ducked the larger question, deciding 7–2 that the Commission displayed religious animus in its treatment of Masterpiece.
For me, it comes down to what the vendor’s being asked to do. Refusing to sell a standard product — something off the shelf they’d sell to other couples — is blatant “we don’t serve your kind here” discrimination, like banning black people from the lunch counter at Woolworth’s. But if it’s a custom product — something not unreasonably called art — then the government making the vendor do it is coerced creative labor. (I tackled this in greater detail here).
The 2018 fight over Brett Kavanaugh’s conformation to the Supreme Court looms large in social conservative narratives of existential threat. For Ahmari, it’s proof they “face enemies who seek our personal destruction.” Dreher says it “radicalized” him. French agrees that it shows conservative Christians under threat, but argues that Kavanaugh’s confirmation demonstrates why the principles of classical liberalism, such as due process and presumption of innocence, are the best response. (As I said, their debate’s primarily over strategy, not the threat’s existence).
Underlying all of these claims is a staggering presumption of bad faith. Ahmari, Dreher, French and many other conservatives don’t consider the possibility that at least some of the opposition to Kavanaugh might’ve been opposition to Kavanaugh himself, not to American Christians in general.
To get there, you have to assume Christine Blasey Ford was lying, deluded, and/or put up to it, that people who say they believe her allegations of sexual assault are also lying, and that the women who poured their hearts out over their own sexual assaults were crisis actors out of Alex Jones’ imagination, or at least manipulators exaggerating how they feel because of their secret anti-Christian agenda. And you also must dismiss concerns from Americans who think Kavanaugh’s previous experience as a partisan operative isn’t a good fit for the nation’s highest supposed-to-be-impartial body.
Most importantly, you have to ignore the recent Supreme Court confirmations of Neil Gorsuch (conservative and Catholic, like Kavanaugh), Samuel Alito (conservative, Catholic), and John Roberts (conservative, Catholic), none of whom faced accusations of sexual assault. You have to concoct a story where the left wasn’t angry during Gorsuch’s nomination in 2017 — even though they were openly furious that the Senate blocked Obama’s 2016 nomination of Merrick Garland — but developed such fury over the subsequent year that they decided to invent and then pretend to care about accusations of sexual assault.
A lot of people care passionately about the Supreme Court, with many on the left strongly opposed to right-wing positions on abortion, prayer in schools, and other issues involving religion. And there’s no doubt some political operatives oppose every Supreme Court nomination from the other party and will latch onto whatever they can to fight it. But this does not add up to Christians under existential threat.
The Kavanaugh case reveals the fuzziness of the distinction between cultural and political power. According to right-wing culture warriors, winning elections is not a sign of lasting power, because it’s political, not cultural. However, nearly losing — but still winning — a Supreme Court seat is a sign of cultural weakness so menacing that Christians must adapt a crisis mentality.
Social conservatives worrying about cultural annihilation may find all the above examples unconvincing. They all involve institutional power — court rulings, Senate votes — and one of the cultural warriors’ arguments is that conservatives must do anything to hold institutional power as a bulwark against the cultural threat.
Consider, then, the case of Chick-fil-A.
In 2012, the family-owned fast food chain came under fire when the chief operating officer publicly opposed same sex marriage, and it came out that the family’s foundation donated millions to organizations fighting against legalization. In response, LGBT rights activists called for protests and a boycott..
So it went out of business, right? Or if it didn’t, it’s because a court came to the rescue?
Nope. Conservatives rallied to the restaurant’s defense. Sales rose 12% in the aftermath of the controversy, and the chain has continued expanding, growing larger than Burger King or Wendy’s. Activists fought the expansion — here’s one warning of “Chick-fil-A’s creepy infiltration of New York City” — but failed.
It’s Not a Crisis
The Chick-fil-A case encapsulates my argument. Social conservatives face motivated opponents that have some cultural power. But religious conservatives have quite a bit of cultural power too. Plus a lot of judicial and political power. Ahmari’s frame of existential danger is divorced from reality. French’s “immense threat” is overstated.
There’s no question that Christianity is weaker in the United States in the 21st century than it was in the 20th or 19th. Mainstream movies, television, and pop music often portray social conservatives negatively (if at all), and portray things social conservatives disapprove of positively. But what this all adds up to is competing in American society as a large, powerful bloc — not impending annihilation.
The slope isn’t slippery.
Conservative Christians hold the keys to statehouses, House and Senate seats, electoral votes. There’s a friendly majority on the Supreme Court, and friendly judges throughout the system. Christianity has an enduring cultural power, because it’s deeply embedded in American life, and because millions of Americans practice various versions of it every day.
The narrative that religious conservatives face cultural apocalypse is one of the most toxic in American politics. It is one of the biggest causes — not the only cause, but a big one — of zero-sum, no-compromise, fight-over-everything hyper-partisanship. Because after all, if you’re facing extermination, you have no choice.
This logic bears enough resemblance to racist theories of “white genocide” that it should give social conservatives pause.
But it’s also good for political mobilization and media consumption. And a lot of people seem to like thinking of themselves as victims. So I wouldn’t expect it to stop.
Across the United States, Republican-controlled legislatures are outlawing abortion, with the hope of bringing the issue before a sympathetic Supreme Court. If they succeed in revoking women’s reproductive rights, the US will quickly become a different society – one resembling communist-era Romania.HUNEDOARA, ROMANIA – “It was a horrible time,” recounts one Romanian gynecologist, referring to the period between 1966 and 1990, when abortion and contraception were completely banned under the dictatorship of Nicolae Ceaușescu. “Women refused to have sexual lives, resulting in family fights and abandonment,” she continued. “For a woman, any sexual contact meant only panic and pain.” As another Romanian who lived through the period put it, “It was impossible to have a normal sexual life because of fear of getting pregnant.”If the Republican Party in the United States has its way, millions of American women could soon come to know the same fear. Republican lawmakers in Georgia, Alabama, and other states have enacted or are proposing outright abortion bans, hoping to bring the issue back before a sympathetic US Supreme Court and overturn or further gut the landmark 1973 decision in Roe v. Wade. In the absence of Roe’s constitutional protection of a woman’s right to have an abortion, America would become a different society, because, as in Ceaușescu-era Romania, the government would police its members’ most personal choices.It wasn’t only women who suffered from the Ceaușescu regime’s attacks on their bodily integrity. Far from strengthening the family, Romania’s draconian “pro-life” policies
- poisoned heterosexual intimacy,
- strained marriages, and
- weakened social trust.
Monthly gynecological exams brought the state inside women’s uteruses and, by extension, into the bedroom. State surveillance of sexual activity resembled that of a farmer breeding livestock. With provisions prohibiting women from going out of state for an abortion, or from using certain contraceptive methods (such as intrauterine devices), much of the new US legislation, if upheld by the Supreme Court, would expose women to a similar enforcement regime.
After the Ceaușescu regime fell in December 1989, one of the interim Romanian government’s first moves was to decriminalize abortion. While debates about many aspects of the communist legacy soon erupted, few Romanians had any doubt that forcing women to have babies they didn’t want had been disastrous for the country.
Even after three decades under the ban, Romania’s birth rate had not increased. Instead, Romanian women had undergone nearly 7.3 million back-alley abortions – an average of three apiece – between 1967 and 1989. At least 15,000 women died as a result of complications and untreated side effects. Romania’s infant-mortality rate during this period was the highest in Europe, and anywhere from two to 59 times above that of other countries.
Though most Eastern Bloc countries expanded women’s reproductive freedoms after Stalin’s death in 1953, by the late 1960s, communist leaders began to worry that declining birth rates would lead to future labor shortages. But while other East European countries addressed the issue through longer paid maternity leaves and higher child-care benefits, the Romanian government took a different path.
Prior to 1966, Romania had one of the most liberal abortion policies in the world. But, desperate for population growth, Ceaușescu issued Decree 770, essentially nationalizing Romanian women’s wombs. Both abortion and contraception were criminalized for all women age 45 and under who had not borne at least four children (later increased to five). The only exceptions were for rape and incest, high-risk pregnancies, and cases in which the fetus could contract a hereditary disease from either parent. The law was strictly enforced. The Romanian secret police, the Securitate, registered suspected pregnancies and kept tabs on women until the birth of the child. It was the kind of natalist authoritarianism that US “pro-life” advocates have long dreamed of.
With challenges to Roe looming on the horizon, and with many US states having already denied access to abortion facilities and reproductive health services through other means, Romania’s experience shows what happens when women suddenly lose the right to control their own bodies. Without reproductive freedom, heterosexual sex turns into a game of “Russian roulette” for women, because they quite literally bear the consequences of any liaison. Indeed, Alabama’s new law goes further than Ceaușescu’s Romania, by eliminating even the exception for rape or incest.
Abortion opponents claim that banning it will
- promote marriage,
- strengthen families, and
- restore traditional gender roles.
But the Romanian case shows that a more likely scenario is a
- rapid increase in maternal mortality, an
- explosion of unwanted children and orphans, and
- a “sex recession,” as wives choose to avoid intimacy with their husbands altogether.
As in Romania, the state’s violent intrusion into the private sphere will upset the lives of men and women alike. Americans can look forward to a future of bad sex and wrecked relationships.
It’s time to face facts. A century of evidence from around the world shows that coercive reproduction policies correlate weakly with actual fertility rates. The fact is that women’s decisions about family size are based on material realities. When basic food supplies are scarce (as in Romania in the 1980s), women will risk their lives having back-alley abortions, for fear of lacking the means to care for a child. Where paid parental leave and childcare are absent or prohibitively expensive, as they are in the US, women will make similar economic choices, regardless of the laws on the books.
After communism, Romania’s people recognized that democratic societies have a responsibility to guarantee women’s bodily autonomy, and to respect the right of all citizens to make their own decisions about whether and when to start or add to a family. It is odd that in the “land of the free,” one of the major parties would emulate a communist dictator.