Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade.

• Author: Devins, Neal

In 1970, judicial recognition of abortion rights seemed farfetched. In January of that year, Linda Greenhouse wrote in the New York Times Magazine about a "right to abortion" -- describing "[s]uch a notion ... [as] fantastic, illusory. The Constitution is searched in vain for any mention of it. The very phrase rings of the rhetoric of a Women's Liberation meeting."(1) While Greenhouse's bit of hyperbole was a setup to one of the first full-blown popular press treatments of burgeoning judicial recognition of abortion rights, no one could have foreseen the prospect of a sweeping Supreme Court decision invalidating forty-six state antiabortion laws -- at least not in 1970.

At that time, however, the events leading up to the Supreme Court's Roe v. Wade(2) decision had already been set in motion. In the fall of 1969, Norma McCorvey -- a.k.a. Jane Roe -- realized she was pregnant and sought legal counsel to attack Texas's antiabortion statute. In June 1970, a three-judge federal district court struck down Texas's antiabortion statute on privacy grounds.(3) Just one year later, the Supreme Court granted certiorari in Roe and McCorvey's attorneys -- Linda Coffee and Sarah Weddington -- were furiously working on their Court briefs. In January 1973, after two oral arguments and the additions of Justices Lewis Powell and William Rehnquist to the Court, the Supreme Court's opinion in Roe sent shock waves throughout the nation.

How could a decision of such monumental import catch the nation -- including most legal academics -- by surprise?(4) Was Roe, as Robert Bork suggests, a brazen "judicial usurpation of democratic prerogatives"?(5) Alternatively, was Roe the inevitable outgrowth of Griswold v. Connecticut(6) -- a decision whose precedential effect was not realized because it struck down "an uncommonly silly law,"(7) Connecticut's antiquated ban on the use of contraceptives?

David J. Garrow's Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade(8) helps answer these and many other questions. Garrow meticulously uncovers the events leading up to Griswold and Roe and the deliberations of the Justices and their clerks in both cases. While the book -- at close to 1000 pages -- is weighed down by its own thoroughness, Garrow lays bare the efforts of reproductive freedom advocates and the Justices sympathetic to their arguments.

Despite covering territory that Bernard Schwartz, Mary Dudziak, and others have already explored,(9) Liberty and Sexuality is a strikingly original work. Garrow painstakingly details the inner-workings of both the reproductive freedom community and the Supreme Court in Griswold and Roe. By interviewing well over two hundred individuals who participated in these controversies and reading everything and anything connected to these disputes -- including the case files of former Justices William Brennan, William O. Douglas, and Thurgood Marshall -- Garrow has provided the definitive account of the plaintiffs' side of Griswold and Roe. This account, in and of itself, is an extraordinary achievement.

Liberty and Sexuality seeks to be much more than a history of the Griswold and Roe litigation, however. Perceiving the constitutional right to privacy to be a "basic truth" (p. 705) and Roe to be "the legal and moral equivalent of Brown v. Board of Education,"(10) Liberty and Sexuality seeks to give Roe v. Wade its due as "a landmark in the growth of American freedom."(11) Garrow pursues his normative ends through two techniques. First, Garrow focuses his attention on the reproductive freedom community. By treating the story of these social activists and lawyers as the one worth telling, Garrow -- through an evenhanded but generally sympathetic portrayal of these individuals -- places his readers in the shoes of one side of the bitter struggle over abortion. The prolife community, to the extent Garrow considers it, is typically portrayed in less sympathetic terms.(12) For Garrow, who -- in promoting Liberty and Sexuality -- has described Operation Rescue as "really beyond the pale in just the same way the Klan is,"(13) the prolife community is principally viewed as an obstacle on the path toward the achievement of liberty.

Garrow's second technique is purely factual. Specifically, by demonstrating that Catholic interests in Connecticut effectively and repeatedly blocked efforts to repeal that state's anticontraceptive law and that a burgeoning right-to-life movement may well have undermined prochoice legislative reform efforts, Liberty and Sexuality implies that court action was instrumental to the cause of reproductive freedom.(14) In striking this significant blow for judicial activism, Garrow masterfully rebuffs two strands of historically based criticism of Griswold and Roe. First, Garrow lays to rest the claim that Yale law professors cooked up Griswold because, as Judge Bork put it at his confirmation hearing, "they like this kind of litigation."(15) Instead, he demonstrates that before Griswold struck it down, Connecticut's anticontraception law had blocked creation of family planning centers for low-income women for more than two decades, thereby providing an equity-based justification for the lawsuit. Second, contrary to the recent wave of attacks by prochoice liberals -- including Clinton Supreme Court appointee Ruth Bader Ginsburg -- against Roe as being counterproductive to the prochoice movement, Garrow's history lesson makes clear that the prochoice movement was necessarily dependent upon judicial action.

Garrow's history lesson is incomplete, however. While demonstrating that Roe was a necessary step to the creation of meaningful abortion rights, Liberty and Sexuality inaccurately infers that the story of reproductive freedom is one of judicial resistance to legislatures dominated by prolife interest groups. Garrow does not consider the ways in which judicial decisionmaking and elected government action affected each other. For example, although Liberty and Sexuality considers post-Roe developments up through the Supreme Court's 1992 reaffirmation of abortion rights in Planned Parenthood v. Casey,(16) it limits its sights to court-related action. Garrow does not give any meaningful treatment to legislation and regulation designed to alter the face of abortion rights. More significantly, he does not consider the ramifications of such elected government action on Court decisionmaking. Garrow simply cannot achieve his grander objective of helping "people to appreciate what Roe really represents"(17) without considering the constitutional dialogue that has taken place between the courts and elected government in the three decades since Griswold and the two decades since Roe.

That Garrow's presentation is incomplete reveals Liberty and Sexuality's obsession with elevating the stature of Roe v. Wade to a victory for American freedom on the order of Brown v. Board of Education. At one level, Garrow's comparison fails because Brown is generally understood to be "the greatest moral triumph constitutional law ha[s] ever produced,"(18) whereas honorable people can disagree about the moral rightness of a decision that places reproductive autonomy ahead of potential human life. Yet, even if the Roe-Brown analogy is appropriate -- as it almost certainly is for a good many of Garrow's readers -- Brown itself points to the necessity of getting beyond Supreme Court decisions and into elected government action in explicating the shaping of constitutional values. Just as the story of Brown must include southern resistance, the 1964 Civil Rights Act,(19) and the busing controversy, the story of Roe v. Wade encompasses abortion funding restrictions, the "gag rule," and several other legislative and executive initiatives.

This review will help put Roe in proper perspective by considering the ways that elected government and judicial action influence each other. In particular, the story of abortion rights must consider how social and political forces contributed to the Court's moderation of Roe in Planned Parenthood v. Casey, a decision that replaced Roe's stringent trimester standard with a less demanding "undue burden" test.(20) While this exercise may deflate Roe's achievements, it will also point to the pivotal role that Supreme Court decisions play in elected government deliberations. Specifically, when considering the constitutionality of legislative and regulatory initiatives, elected government has looked to Supreme Court decisions as the defining benchmark. Furthermore, rather than approving legislation or regulations directly at odds with Roe, elected government has expressed its opposition through funding bans and other indirect techniques. Finally, and most significantly, Roe and its progeny shaped elected government attitudes toward abortion. The result of this interaction is that despite the Casey Court's returning much of the abortion issue to the states, state lawmakers -- apparently preferring the Roe-created status quo -- no longer appear interested in enacting antiabortion restrictions.

Liberty and Sexuality recognizes neither the profound role played by political and social influences in Court decisionmaking nor the equally profound effect of Court decisionmaking in shaping the scope and sweep of elected government action. Garrow's book is nonetheless monumental -- far and away the definitive guide to the Court's reasoning in and the political developments that preceded Griswold and Roe. This review, building upon Garrow's lessons regarding the Supreme Court's role in the abortion dispute, offers an alternative paradigm to the one Garrow suggests. Part I of this review summarizes Liberty and Sexuality's ample teachings about the leadership role that courts played in fueling the reproductive autonomy movement. Without decisions like Griswold and Roe, as Liberty and Sexuality makes clear, it is uncertain whether and when the political process would have...