Why ‘Privacy’ May Hinder ‘Equality’ : LIBERTY & SEXUALITY: The Right to Privacy and the Making of Roe v. Wade, <i> By David J. Garrow (Macmillan: $28; 981 pp.)</i>
When I was in college around 1960, there was a great deal of borrowing and lending of a plain gold ring. Its purpose was to disguise its wearer as married so that she could get contraception--a diaphragm, the only reliable thing available then--from a New York physician whose name and address were also shared (he was an understanding Viennese who didn’t believe the gold ring for a minute).
Some of us did not have the nerve or money for these visits to an expensive New York doctor, and others did not use these diaphragms consistently or carefully, which was hardly surprising given the makeshift conditions under which we had sex: men could only stay in women’s dorm rooms with the door ajar and a foot on the floor; women could not be out overnight.
So several of my acquaintances got pregnant and visited a certain Dr. Spencer, later to gain public recognition as a brave and principled abortionist in Pennsylvania. We did this very discreetly, of course, because a known pregnancy (or any other evidence of immorality) would get a girl expelled.
Only a decade later, the terms on which young people conducted their sexual lives had shifted dramatically. In 1965 the Supreme Court held that bans on contraception were unconstitutional; in 1973, the court extended that ruling to abortion. A powerful women’s movement had taught us a new vocabulary, new aspirations and rendered intolerable the idea that government could try to enforce a puritanical morality upon us.
This was a transformation of world-historical importance, and David Garrow’s massive book, while marred by an inattention to historical patterns and constitutional issues, offers important new evidence about its legal development, particularly of the constitutional principles created in the process.
Garrow’s main originality lies in showing the direct line connecting the struggles to legalize contraception and abortion. He shows us how the right to privacy, first enunciated in Griswold as an entitlement of a married couple, could not be limited to the married. And he concludes with the struggle to extend this still-fragile privacy right to gays and lesbians.
Garrow’s evidence dispenses with the charge that the Supreme Court overreached itself in the Roe v. Wade decision. He identifies the considerable number of cases that would have reached the Supreme Court even if it had avoided a Constitutional finding in Roe, and reviews the abortion reform movements state by state to show how many legislatures had already moved to permit legal abortion before Roe. While Griswold was necessary to overturn a state law that was virtually a relic of an old order, Roe federalized an abortion reform movement already sweeping through the states.
Garrow’s research is prodigious, even breathtaking. He conducted more than 200 interviews with former activists and collected personal letters, memos, multiple drafts of opinions from both personal and archival collections. His reconstructions of Supreme Court private sessions and individual justices’ conversations with clerks are particularly vivid and enlightening, showing the dickering necessary to form majorities.
Chronicling the birth controllers’ attempts to pass bills, open clinics, and press lawsuits, Garrow shows the long, hard labor that lies behind successful social reform. The best moments of “Liberty and Sexuality” come from Garrow’s commitment to crediting the uncelebrated litigators, abortion providers and activists whose guts and energy gave us a legal right, however contested, to what has come to be called “choice.”
Dr. Spencer, the savior of several of my friends, is here, as is “Jane,” the Chicago women’s liberation collective that first arranged and then performed 3,500 illegal but safe abortions a year in the late 1960s. Even among those who know the significance of Griswold vs. Connecticut, few know who Estelle Griswold was--the Catholic-born executive director of Connecticut Planned Parenthood.
Garrow’s interesting individuals and their relationships, their competitiveness as well as their cooperation, reveal important historical connections: Who knew, for example, that the originators of Roe vs. Wade were women in the University of Texas SDS chapter, rebelling against sexist treatment by male leaders? These activists permanently changed the sexual rules of our society.
Unfortunately, Garrow’s tight focus on legal maneuvers does not allow him paint the social backdrop to our grand domestic conflict about sex, reproduction and women’s rights. About 150 years ago, reproduction control practices were legal by custom in the U.S. and in Europe, including abortion when performed before “quickening.” (Quickening was the moment when a pregnant woman felt the movements of the fetus, and its onset, of course, varied in time.)
In the absence of highly effective contraception, abortion was often the main birth control technique. The birth rate was falling, primarily because new conditions of life and work--notably urbanization--made large families more costly and less productive. At the same time, the cities were making sexual “immorality” more visible. Ironically, the growing women’s rights movement was almost universally opposed to contraception and abortion, believing along with conservatives that motherhood was the primary source of women’s dignity and defense against sexual exploitation.
Nevertheless, conservatives blaming feminists for the falling birthrate began a campaign to criminalize birth control. Their most common refrain was not that fetuses had a right to life but rather that selfish women were trying to avoid their maternal destinies.
Nineteenth-Century Americans did not often distinguish between abortion and contraception, considering both as part of a spectrum of reproduction-control techniques. The conservative campaign, however, sought to end all birth-control practices. And it succeeded: Between about 1840 and 1880, most states in the U.S. prohibited birth control and abortion and a federal law of 1873 prohibited interstate transportation of obscene material, specifically including anything pertaining to birth control (scientific medical literature not excepted).
Between 1910 and 1920, a national movement to decriminalize birth control was started by feminists who saw reproductive choice as fundamental to women’s rights. Less romantic about motherhood, more positive about women’s employment, this generation was influenced by a growing socialist movement to focus particularly on poor women who were often very eager for birth control. The movement created a legal compromise that has shaped our century of conflict about reproduction control: The continued prohibition of abortion was accepted in return for the legalization of contraception under the control of physicians.
The compromise had a sexual double standard: Men could buy condoms cheaply at any drug store, but women could get diaphragms only through private physicians and at costs inflated by the pharmaceutical companies who controlled their manufacture. It also had a class double standard: Women with private physicians (a prosperous minority in the early 20th Century) could get not only diaphragms but also “therapeutic” abortions, while the poor, who used hospital clinics or doctors during emergencies only, had no access to anything except illegal abortions.
The class double standard was fundamental to the Connecticut situation. The burden of its law fell on the poor only. But American legal traditions being what they were then, such inequalities did not yet create a constitutional violation. What did provide such a claim was the extremism of Connecticut’s law, which banned not just the distribution but also the use of contraceptives, even by a married couple.
Garrow takes up the story at this point and chronicles the legal battles as if in “real time,” so that the great moments of this heroic and passionate journey are dimmed. Reading the book is like riding a local train across the country, with stops of identical length in small towns, great cities and monuments. I imagined that Garrow had entered every anecdote, committee meeting and phone conversation into a computer programmed to release them in strict chronological order.
One can agree with Garrow’s pro-reproductive rights, pro-privacy-doctrine perspective but nevertheless resent being written to as if there were no interpretation involved. While assuming the voice of an objective, omniscient narrator, he constructs a narrative that vindicates certain individuals and legal strategies. He may be right, but it would be nice to hear a full discussion of what is at stake.
One major example of an issue not developed: Contraception advocates have differed since early in the century about whether to advocate repealing or reforming abortion laws. It is worth entertaining the possibility that a clean rejection of government regulation would in the long run have produced a quicker peace.
In contrast, the Roe decision allowed anti-abortionists continually to propose new legal limitations--parental consent, spousal consent, waiting periods, mandatory antiabortion instruction, and above all bans on public funding of abortion--which then continually renewed conflict. In the Roe period, Garrow’s evidence shows, even some of the Catholic hierarchy were prepared to accept decriminalization and to battle for pregnant women’s souls and fetuses through persuasion, not law.
Garrow’s research raises a fundamental question: Is the legal concept of “privacy” a reliable ground on which to build reproductive freedom? Perhaps not, for “choice” requires access which in turn necessitates clinics, funding and public provision of information. Traditionally the privacy of marriage and the home has not always been beneficial to women and children, who have been left unprotected from domestic violence.
Garrow himself seems to suggest, through his title and several indirect remarks, that liberty provides a more basic and durable basis for reproductive right, a promising distinction but one which he does not explain.
Other scholars, however, such as Rosalind Petchesky, have suggested that a legal focus on sexual equality might better legitimate reproductive rights. Many briefs and opinions made clear that women’s privacy, women’s liberty, was at issue, but no successful litigation has relied primarily on an equal-rights orientation. Why? Would this change if there were an equal-rights amendment?
Yet another reason the Constitution might be invoked to protect reproductive rights is that they are basic to citizenship. Democratic citizenship not only bestows rights but also requires active participation in government. Traditionally, the economic pressure on women to bear many children and the social pressure to serve as these children’s exclusive caretakers constituted both a cause and a justification for women’s exclusion from citizenship. Still today, involuntary parenthood creates an obstacle to citizenship. Could unimpeded access to reproduction control constitute a citizenship entitlement?
One of the greatest victories of the antiabortion movement has been in forcing abortion-rights advocates onto the defensive, and Garrow’s legal history contributes to that defense, showing the development of constitutional bases and popular support for the right to “choice.” But Garrow’s erudition makes me wish he would extend his ambition to help us expand our historical understanding of the modern struggle for reproduction control and envision for it a more fertile ground than privacy alone.