May 23, 1994 ........... pages 42-46 ............... EXTRACT from-

A review of: Liberty and Sexuality:

By David J.Garrow (Macmillan, 981 pp., $28)

Review By Kathleen M. Sullivan


Garrow devotes nearly half of his narrative to the contraception decisions. His tale begins with the early twentieth-century struggle of Connecticut birth-control advocates against a statute of 1879 that made it a crime to use or to prescribe contraceptives. The law was concocted by P. T. Barnum, state representative and temperance advocate as well as circus entrepreneur; the struggle was led by, among others, Katharine Hepburn's mother. While the Connecticut law was extreme, Garrow shows that other states, including Massachusetts and New York, also had anti-contraception statutes on their books until after the Supreme Court finally declared Connecticut's unconstitutional.

Garrow suggests that sectarian and class divisions kept Connecticut's legislative politics and law enforcement out of step with popular opinion, which increasingly favored legal access to birth control.

Support for birth control clinics came from mostly Protestant, mostly upper-crust, mostly Republican ladies from Greenwich and other gentried enclaves.

The opposition was led by the organized Catholic Church, even as a majority of Catholics polled privately began to support access to birth control methods other than Vatican roulette.

When the priests and bishops thundered from the pulpits of Hartford and New Haven against contraceptive law reform, Democratic lawmakers who depended on Catholic votes were cowed. Thus family planning clinics for poor women were shut down by prosecution or the threat of prosecution. The state legislature repeatedly refused to rescind the law. And the state courts declined to lift the ban, dismissing arguments that contraception is an inalienable right.

No referendum was ever held for fear of unleashing religious strife.


But, as Garrow tells the story, these early successes might have been among the last. Contrary to the hypothesis of the Roe revisionists, the right-to-life movement gathered political steam before Roe, not after it. This is an important historical fact. By 1972, spearheaded by the [Roman] Catholic leadership, "anti-abortion forces had repeal advocates badly out gunned despite the countervailing national public opinion poll numbers."

A grassroots anti-abortion campaign in Michigan succeeded in stopping a referendum in 1972 seeking the repeal of abortion laws. Photos of aborted fetuses proved an effective tactic in the campaign. Soon after, Pennsylvania passed a law that would have barred any abortion except where three doctors deemed it necessary to save a woman's life; this law was stopped only by the governor's veto.


Did Roe liberate abortion rights from the scourge of politics or nip a promising legislative reform movement in the bud? Garrow's narrative lacks analytic structure, but an answer may be teased out of his welter of detail. Garrow's account supports the view that judicial intervention was necessary because the channels of political change were blocked.

His facts supply an answer to a conundrum that Roe has long posed for process-perfectionists, that is, those who view judicial review as a kind of antitrust law for democracy. The conundrum is this: it is easy to see why discrete and insular minorities might need the help of the courts to compete in the political arena, for they are outnumbered under majority rule. But why would married couples or other openly heterosexual persons - surely a powerful political majority - need to resort to the courts?

The reason is that, as public choice theorists have long argued, imperfections in the political market may thwart the vindication of even majority preferences. A small but intense minority can exercise political influence disproportionate to its numbers when a diffuse and silent majority does not organize to fight back. (This is a lesson that industry lobbies realize at consumer expense virtually every day .)

Garrow convincingly depicts the legislative success of the [Roman] Catholic Church leadership and its disciplined parishioners as a textbook case of this phenomenon.


Hardwick, to which Garrow devotes only a few pages in his final chapter, held that the right of privacy does not protect sex acts between two consenting adults in their own bedroom, at least if they happen both to be men. Thus Garrow's title may be misleading: the judicial link between liberty and sexuality is not constant or tight. In Hardwick the Court treated the contraception and abortion decisions as if they had nothing to do with sex or sexuality at all. They concerned the decision "to bear or beget a child," which, for all the Court let on, might have been accomplished by the alighting of seed pods.

Interestingly, Garrow notes how much more explicitly the early privacy combatants talked about sex. While the Court speaks in Victorian euphemisms ("the sacred precincts of the marital bed room," the decision to "bear or beget"), [Roman] Catholic priests and bishops spoke forthrightly from the pulpit about the sinfulness of recreational sex.


Garrow's book should not be dismissed as an anachronism, but valued as an exhaustively researched historical account that enables the patient reader to discern from his raw material both the power and the limits of arguments for reproductive or sexual liberty in an era of common-law constitutionalism that is likely to be with us for a while. It has value not only for constitutional lawyers, but also for all who wish to understand the recent thinking of the Court.


Nor can Roe, which restricts only state actions against abortion, stop private efforts by anti-abortion activists ranging from protest to terrorism at clinic doors. And Roe cannot teach doctors how to perform abortions or keep them in business it they do. (By some estimates, 80 percent of American counties now lack even a single abortion provider)

But Roe and Casey ensured that no state may make abortion a crime. That is no mean feat, considering that Louisiana, Utah, Guam and other jurisdictions stood ready to do so if Casey had come down the other way. And Garrow's history suggests that, from the pro-choice perspective, things would have been worse, not better, if Roe had never come down at all.

KATHLEEN M. SULLIVAN is professor of law at Stanford University.