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

Liberty and Sexuality

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

David J. Garrow

CONTENTS

PREFACE TO THE 1998 EDITION

This big book tells three sequential stories. First, it relates how the forty-year struggle to overturn Connecticuts criminalization of even married couples use of contraceptives finally triumphed in the landmark 1965 Supreme Court right-to-privacy ruling in Griswold v. Connecticut.

Second, Liberty and Sexuality details how that recognition of a fundamental right to privacy in Griswold opened the constitutional door to a previously unimagined argument: that women with unwanted pregnancies ought to have access to legal abortion as a fundamental right. The earliest abortion law reformers had sought liberalization of the strictures that had outlawedbut not actually preventedalmost all abortions since the middle of the nineteenth century, but between 1966 and 1969 that goal of reform was quickly supplanted by repeal: state antiabortion laws could be challenged in federal court as infringements of womens newly recognized constitutional right to privacy. Out of that litigation campaigna quest that got under way late in 1969 and triumphed in January 1973came both Roe v. Wade and its lesser-known but equally important companion case, Doe v. Bolton. The second part of Liberty and Sexualitychapters five through eighttells the story of the early activists and young lawyers who created those cases and the Supreme Court justices who in 19721973 accepted their constitutional claims.

Third, Liberty and Sexuality describes the twenty-five years of abortion litigation and congressional debates that have transpired since Roe and Doe. The first portion of that aftermath culminated in part in the huge setback that sexual liberty claims suffered in 1986 with the explicitly antigay Supreme Court decision in Bowers v. Hardwick. Far more encouragingly, repeated threats to Roes protection of abortion rights, threats that in 19891991 looked likely to prove fatal, surprisingly climaxed instead in the landmark 1992 Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey which powerfully reaffirmed Roes constitutional core.

The second portion of the post-Roe story, the many developments that have occurred since 1993, is newly added to this edition of Liberty and Sexuality. The year 1994 witnessed two double homicides of abortion workers by right-to-life terrorists, but it also witnessed passage of a comprehensive federal statute, the Freedom of Access to Clinic Entrances Act (FACE), which quickly put an end to the violently obstructive mass protests that had besieged so many abortion clinics during the late 1980s and early 1990s.

Antiabortion protests were well past their peak by the time of Roe and Does twenty-fifth anniversaries in January 1998. However, in one of the two most important developments of the post-Casey years, abortion opponents garnered significant political success by making partial birth abortions the subject of debate in legislatures all across the country. Courts constrained antiabortion legislation less comprehensively than they limited antiabortion protests, but the Supreme Court, in a crucial post-Casey milestone, gave gay Americans their greatest legal victory ever in a 1996 ruling, Romer v. Evans, that left Bowers in symbolic shreds.

Roe v. Wades creation and Roe v. Wades legacy represent one of the two greatest storiesthe other is Brown v. Board of Educationin twentieth-century American legal history. Liberty and Sexuality seeks to tell that story as comprehensively as possible, for itlike Brownhas altered and improved the lives of millions of Americans.

CHAPTER ONE

The Waterbury Origins of Roe v. Wade

Katharine Houghton Hepburn had never doubted that Sallie Pease was an ideal president for the Connecticut Birth Control League (CBCL). Hepburns next-door neighbor in Hartford since 1927, a Smith College graduate, and the mother of three school-age boys, Pease was only thirty-sevennineteen years Hepburns juniorwhen she became league president in 1934. For eleven years, since 1923, when nationally noted birth control crusader Margaret Sanger had first visited Hartford, Kit Hepburn had played a central role in holding the league together. Little headway had been made toward the leagues goal of winning legislative repeal of Connecticuts unique 1879 criminal statute that made the use and/or prescription of any form of birth control a crime for both woman and doctor alike, but in the summer of 1935 Sallie Pease had taken the lead in the leagues dramatic but initially unpublicized decision to go ahead and simply open a public birth control clinic in Hartford. Just as the league had hoped, no one moved to enforce the law or to close the clinic, and in its first year of operation the clinics women doctors provided birth control counseling and devices to over four hundred married women, many of them first- or second-generation ethnic immigrants from Hartfords poorer neighborhoods.of having clinic services available in all of Connecticuts large cities when a one-morning-a-week clinic quietly opened in downtown Waterbury, Connecticuts most ethnically diverseand most heavily Roman Catholiccity.

Sallie Pease and Kit Hepburn were rightfully proud of the tremendous progress that had been attained by simply going ahead and opening clinics, rather than by unsuccessfully continuing to petition each biennial session of the Connecticut legislature for a statutory change, as the league had from 1923 through 1935. Neither public officials nor religious groups seemed actively interested in mounting any effort to enforce a now seemingly dead-letter law, and the Connecticut League would be able to continue moving forward with its real purpose of providing actual services to more and more needy women who wanted to limit the number of their children.

So when the Connecticut League convened for its annual luncheon meeting at the Farmington Country Club on Thursday, June 8, 1939, Sallie Pease had no hesitancy in speaking plainly about their new successes. The general director of the national Birth Control Federation of America (BCFA)the newly renamed organization that was the direct descendant of Margaret Sangers initial work two decades earlierDr. Woodbridge E. Morris, had himself come up to central Connecticut for the luncheon, and while Hartford reporters took notes on Morriss remarks about the regrettable level of maternal mortality in America, they also listened to Sallie Peases presidential report, in which she highlighted the opening of the Waterbury clinic as the leagues most prominent achievement in the preceding year. What was especially notable, she stressed, was that the Waterbury clinic, unlike any of its other Connecticut predecessors, was operating in a public institution, in the Chase Dispensary outpatient building of the Waterbury Hospital. So far, Pease said, it has received no publicity, but it is there in working order and will grow.

Sallie Pease was a brash and flashy person, quite different in style and persona from the Greenwich and Fairfield County women who comprised much of the Connecticut League, and she hadnt given any thought to the possible press coverage of her luncheon remarks.

The