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Roe v. Wade in Historical Context

ABORTION liberals like to think that history supports loyalty to Roe v. Wade. History, they say, reveals that laws restricting abortion stem from 19th-century conceptions of gender inequality, religious extremism, indifference to poverty, and archaic public-health concerns.

Abortion conservatives, however, insist that they are in league with history. Conservatives trace the impulse to restrict abortions to advances in scientific understanding both of the origins of human life and of the potentially adverse effects of abortion on women.

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Which version of history is correct? For most people, the problem with assessing the historical claims made by ``pro choice'' and ``pro life'' advocates is the scarcity of usable histories. For too long, the history of abortion regulation has remained buried in inaccessible archives and academic books.

A recent journalistic history by a Pulitzer Prize-winning author is subtly and credibly on the side of choice. Without partisanship, sensationalism, or overt value judgments, David J. Garrow's ``Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade'' details the people, places, and politics behind the legal struggle for reproductive rights in the United States.

Garrow concentrates on 20th-century efforts to undo 19th-century anti-birth-control legislation. His history chronicles how reforms designed to bring family-planning options to poor women broadened into reforms designed to promote sexual liberty and gender equality for all women. Reading Garrow's book, one can see the truth in the liberals' argument that American law originally opposed neither birth control nor abortion. Roe v. Wade has origins much deeper than the judicial activism and feminism of its own decade.

Although Roe v. Wade, the centerpiece of this book, hails from Texas, Garrow begins with a detailed account of birth-control-law reform movements in Connecticut. Some of the earliest and most restrictive abortion laws were enacted in Connecticut in 1879. The 1879 statute criminalized the use or prescription of all birth control devices.

The stringency of Connecticut law moved Yankee activists, physicians, and lawyers to forge the ``right to privacy'' doctrine eventually adopted by the Supreme Court in Griswold v. Connecticut.

In a 1965 decision, Griswold established that a right to privacy residing in the ``penumbra'' of the Bill of Rights and the 14th Amendment invalidates state laws making it a crime for physicians to prescribe birth control methods or married couples to use them. A later Supreme Court case extended the right to unmarried persons. A young Texas lawyer named Sarah Weddington subsequently incorporated the ``right to privacy'' doctrine into arguments presented to the Supreme Court in Roe v. Wade, the case that ended, perhaps forever in the US, blanket criminal bans on abortions.

The story Garrow tells is well worth the 900 plus pages he gives it. Based on interviews, law reports, newspapers, and institutional archives, ``Liberty and Sexuality'' is rich with details. Garrow even describes the facts and holdings of case precedents that figured into courts' reasoning in the major cases he discusses. The book sticks to its main subject, ignoring legal developments in the area of sexuality and liberty other than direct legal precedents of Roe v. Wade. The one striking exception is Garrow's account of a 1986 case, Bowers v. Hardwick, in which the Supreme Court upheld laws against sodomy.

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Few stories in the book are better told than that of Bowers v. Hardwick defendant Michael Hardwick and that of Norma Corvey, the once anonymous ``Jane Roe'' of Roe v. Wade.

The tales of legal giants Harry Blackmun and William Douglas tell themselves. (Garrow's access to newly available Supreme Court documents enlivens his account, but results in no major revelations.) A surprise delight is Garrow's stitching together of the contributions of lesser-known central figures in reproductive history, including lawyer Harriet Pilpel and Planned Parenthood's Estelle Griswold.

The rare reader will find Garrow's book uniformly compelling. Neither the internal machinations of the Connecticut legislature, the personal recollections of former Supreme Court law clerks, nor the theses of the dozens of scholarly articles written in response to Griswold and Roe v. Wade matter much to many people. For this reason, Garrow's most interested readers will be reproductive-rights activists curious about the history and significance of their own organizations. Garrow's most grateful readers may be legal historians seeking additional sources.

``Liberty and Sexuality'' ends with the Supreme Court's most recent major abortion decision, Planned Parenthood v. Casey. Decided in 1992, the Casey decision affirmed the essential tenets of Roe v. Wade. In so doing, it exposed a moderate pro-choice coalition of Republican appointees on the court - Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter. As Justice Blackmun, who wrote the majority opinion in Roe v. Wade, had done in earlier cases, these justices went on record in Casey as acknowledging the important link between women's social equality and control over reproduction.

Indeed, the conclusion of Garrow's book may be the beginning of a new era of reproductive-rights advocacy and judicial thinking: the era of equality. The court's newest member, Justice Ruth Bader Ginsburg, says the strongest argument for abortion rights is based on the Equal Protection Clause of the 14th Amendment. A great many prominent legal scholars agree.

By the end of the decade, constitutional equality, along with privacy, may be extolled as a key legal value protected by abortion rights. A new, conceptually expanded Roe v. Wade may be in the offing.

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