Liberty and Sexuality

It is now twenty-one years since Harry Blackmun assaulted American constitutional jurisprudence with his opinion in Roe v. Wade . The Justice labored mightily only to produce an intellectual and moral embarrassment, one that will shadow him forever in much the same way and for much the same reason that Dred Scott haunts the reputation of Roger Taney.

Blackmun’s opinion has not improved with age, nor have the years softened the harsh judgments that greeted it at the time of its deliverance. Indeed, few Supreme Court decisions have ever been the object of such instant and severe censure, much of it coming from those who were no particular friends of the unborn child. In this politically correct era, however, the decision had one redeeming feature: it reached the fashionably acceptable result. Never mind that this grand achievement relied upon an almost willfully ignorant understanding of human biology and a moral rationale that would have embarrassed a Philosophy 101 student. And never mind that its constitutional raiment was a lawyer’s version of the Emperor’s New Clothes.

It would be too much to say that Roe caused a revolution in law or morals, but it certainly legitimated one. For what Blackmun and his supporting colleagues did was to read into the American Constitution a thoroughly modern metaphysic, one that celebrates individual autonomy as the summum bonum of civil society (provided, that is, you manage to get yourself born first). It may be doubted whether Blackmun and Co. understood the full implications of what they were doing; that is perhaps the kindest thing to be said for their efforts. They nevertheless effected a radical turn in the direction of American constitutional law. Roe was not the first, nor will it be the last, decision to lead us toward a jurisprudence of autonomous individualism, but it was (and is) a signal statement of that view, and as such, a radical turn from the moral principles of the founding.

David J. Garrow celebrates Roe precisely because it so dramatically advanced this new way of thinking about the source and character of individual rights. Liberty and Sexuality is his account of how abortion on demand came to enjoy the protection of the United States Constitution and of why Harry Blackmun’s rationale for individual autonomy (especially in matters sexual) should be retained and expanded. He begins his tale with an exhaustive (and exhausting) battlefront diary of the thirty-year assault against Connecticut’s archaic anti-birth control statute and uncommonly foolish law of which the best that could be said is that it was enforced mostly by salutary neglect. Its foolishness, however, was a separate question from whether the federal judiciary ought to be the instrument of its invalidation and, if so, on what constitutional grounds. Innumerable silly, noxious, and even perverse laws dot the nation’s statutory landscape, making life inconvenient (or worse) for all sorts of freedom-loving citizens. But to have federal judges roaming that territory as a kind of constitutional posse is frequently a cure worse than the disease. Wise judges have always understood the prudential and constitutional limits of the judicial writ in a democratic society and for that reason have picked their targets carefully.

No such prudential restraint deterred William O. Douglas and his colleagues when they nullified the Connecticut statute in 1965 in the Griswold case. That the law was held to be unconstitutional was less shocking than that the Court was unable to articulate a coherent rationale for its conclusion. Douglas, who wrote the lead opinion, composed a panegyric to privacy that he could not tether to any particular clause in the Constitution. But never mind, he found its source and justification in that ancient document’s “penumbras” and ”emanations,” which because they are not limned in words have, shall we say, a certain useful plasticity. Since then, of course, the Court has discovered all sorts of other hitherto unobserved rights, the most prominent among these being the right to abortion on demand. It is to that subject that Garrow devotes the larger part of his book, offering what amounts to a backstairs history of the litigation strategy that eventually led to Roe v. Wade.

Garrow’s hand, the story unfolds as simple didactic drama for the already converted. Certainly none of his readers will have trouble differentiating the Good Guys from the Bad guys: the Forces of Evil almost always wear Roman collars or their equivalent (or take orders from those who do), and appear to stay awake nights thinking up new and devilish ways to make life harsh for women. Though deeply entrenched, well-financed, and of course enormously powerful, these blackguards are nevertheless routed by a small but dedicated band of courageous, freedom-loving women and their equally virtuous allies, who appear to spend most of their time selflessly pursuing noble causes and making life more beautiful and meaningful for all Americans, especially the downtrodden.

In short, if you like your history neatly packaged so as not to disturb opinions inconsistent with, say, those of the New York Times , you will undoubtedly consider this book as a more or less definitive recounting. On the other hand, if you question the wisdom, justice, or constitutional pedigree of the jurisprudence celebrated by Garrow, the book will seem just another pamphlet albeit a massive and sometimes elegant one in the continuing cultural war about morality in general and sexual mores in particular.

Within the narrow ideological limits he has set for himself, Garrow weaves an interesting tale, although even his partisans might wish for a more abridged version. He has an eye for detail and for the ways in which personality brings life to otherwise dryasdust factual narrative. He appears to have interviewed everyone still breathing who had anything whatsoever to do with the events he chronicles, and has made good use of his access to judicial papers and former Supreme Court clerks.

Despite these technical virtues, however, Garrow’s is at best a half- told tale. So strongly does he identify with the reformers that he never really asks why their efforts were and continue to be resisted. He is almost breathless in his recounting of the gritty determination of his mostly fashionable heroes and heroines, but never wonders why legalized abortion has driven this nation as few other issues in its history. Nor does he wonder why, twenty years after Harry Blackmun thought he had put the matter definitively to rest, the Supreme Court is still struggling for a coherent rationale to justify its original intervention. For a book that purports to be a comprehensive, if not definitive, account of sexual freedom and the law during the past half century, that is a rather significant shortcoming.

This failing is less a case of indifference or hostility, I think, than it is of moral tone deafness. In a work of nearly a thousand pages, Garrow never really takes seriously (and therefore never comes to terms with) the substance of the argument that was, and is, arrayed against the legalization of abortion. Although he otherwise provides mind- numbing detail at every turn, he is singularly incurious, for example, about the claims that can be made on behalf of the innocent creature he condemns to death in order to safeguard the pregnant woman’s “privacy” rights. Garrow’s camera focuses mainly on liberals talking with liberals about which strategy is most likely to succeed. He dutifully records colorful minutiae about their personal lives and recounts in detail their worries and disagreements. He seeks to extract such drama from these encounters as they will yield, but misses altogether the larger and more important drama that lies at the heart of the abortion controversy.

He seems wholly unacquainted, for example, with any argument that might be advanced on behalf of the unborn other than one deriving from Roman Catholic or other religious doctrine, and he does not pause to examine even those. He is similarly unacquainted with the vast literature on human embryology or fetology that makes so compelling a case for the humanity of the unborn child. He seems blissfully unaware, in short, that the occupant of a woman’s womb might be considered as something other than a social inconvenience or a roadblock on the route to her achievement of personal autonomy. When Garrow listens to the womb, he hears only silence. In this, he unconsciously imitates the Court itself, which to this day proceeds on the fiction that only the pregnant woman has any rights worth worrying about.

That is why, perhaps, it is impossible for Garrow to imagine a principled opposition to the reformers whose lives he chronicles, who proceed as if an abortion were no more morally problematic than an appendectomy. As the feminists like to say about sexual harassment, Garrow “just doesn’t get it.” Try as he might to avert his gaze, however, something to be more precise, someone is killed during an abortion. That is why the legal revolution he celebrates in this book will always be sullied, in Shakespeare’s words, with “black and grained spots as will not leave their tinct.”

Michael M. Uhlmann is an attorney now serving as a Senior Fellow at the Ethics and Public Policy Center in Washington, D.C.