The Court & the limits of the sexual revolution
Freeman, Alan & Mensch, Elizabeth
THE LIMITS OF LIBERATION The Court & the sexual revolution ALAN FREEMAN and ELIZABETH MENSCH ^¦|^k^^^H ost law students of the ^^^B^^^J late 1970s learned the ^^^^0^^| conventional liberal...
...Macmillan, $28, 981 pp...
...Oddly connected to Garrow's anemic moral vision is his account of the sexuality that supposedly lies at the core of the privacy right (the title of the book is Liberty and Sexuality...
...The privacy rights protected in both Eisenstadt (by implication at least, a right to enjoy unmarried sex) and Roe (a right to choose abortion before viability), unlike the marital use of birth control affirmed in Griswold, were rights whose exercise challenged traditional public moral assumptions...
...Garrow demonstrates little understanding of the depth of the dilemma posed by this choice...
...The decisive opinion in Casey was the "joint" opinion of Justices Kennedy, O'Connor, and Soutcr (all Reagan or Bush appointees...
...Casey is a methodological retreat as well—from the grandiose promise of privacy to the more marginal and desultory application of due process "liberty...
...autonomous individual...
...Nor does he appreciate the symbiotic quality of the state/ individual relationship...
...23...
...The model, in other words, is no longer the stark choice between state and individual, but a more complex allocation of authority, with considerable deference to convention...
...Recall Griswold: The Court's decision to recognize a right of marital privacy, however inartfully and superficially argued, could be read as consistent with a longstanding tradition of dcpoliticizing marriage (by, paradoxically both sacralizing and universalizing it)—one of the great and powerful accomplishments of the church...
...That history started with Griswold v. Connecticut, the famous birth control case...
...In pagan Rome an infant became "human" only when it was accepted by the father of the household, and the house - hold was a microcosm of the polity...
...That account misses the point...
...The Catholics who, Garrow shows, railed against recreational sex when they opposed repeal of the Connecticut birth control statute (as it turned out with stunning political miscalculation, since without Griswold there might never have been Roe) at least knew they were grappling with Dionysian forces a little more interesting and challenging than Garrow seems to recognize...
...Perhaps the legal tradition cannot be expected to embrace Nietzschcan sexual defiance with the same respect it accords marriage...
...Thus, according to historian Peter Brown, the church affirmed the "silent withdrawal of the city" from the "most intimate aspects of married life," even while, paradoxically, proscribing practices once easily tolerated...
...But Garrow's own data reveal a more ambiguous picture...
...While most law professors conceded that the logic of Griswold was less than compelling, and the formulation inelegant at best ("penumbras" were easy to ridicule), we all nevertheless "knew" that at some level Douglas was right...
...As Camille Paglia has pointed out, tolerance brings its own oppressions...
...In its formulation, moreover, Casey almost explicitly rejects the privacy-right rationale, locating the question instead in what constitutional lawyers call "substantive due process," which is about perpetuating and affirming tradition, not chucking it...
...On the much-debated question as to whether the legislative process might have produced a compromise less divisive than Roe, his view is clear: Reform statutes allowing for "therapeutic" abortions would have provided scant additional access to safe abortions, and more thoroughgoing repeal legislation would have been blocked by an anti-abortion movement gaining strength well before Roe v. Wade...
...With even post-Vatican II Catholicism recognizing marital sex as appropriately companionate as well as procreative, Griswold could be read as supportive both of marriage as an institution and of its apolitical character—an easy case...
...As Garrow's detailed study abundantly makes clear, private rights require state protection...
...He sees Hardwick as an unfortunate diversion before the triumphant reaffirmation of Roe in the 1992 decision in Planned Parenthood v. Casey...
...Doctors, Guttmacher thought, were ill-equipped to help women with abortion choices, which he saw as ethical and not medical...
...Indeed, no issue has challenged our assumed boundary between private and public virtue more dramatically than abortion...
...The philosophy that informs their opinion is that of the late Justice Harlan, who concurred in Griswold in 1965, but emphasized the importance of "judicial self-restraint," and insisted on "respect for the teachings of history" and "solid recognition of the basic values that underlie our society...
...who had argued (somewhat flamboyantly) that no "privacy" right could be found in the Constitution, was accused of inviting the storm troopers to invade our marital bedrooms...
...That limited moral sensibility makes it hard for Garrow to comprehend even a reformer like Alan Guttmacher, who though dismayed when prohibited from performing an abortion on a young victim of incest, for years insisted that the country was not ready for complete repeal and worried that abortion-on-demand might erode our respect for life...
...For example, Catholics appear in his narrative as simply a politically powerful impediment to progress—rather than as people with an intelligible moral theory...
...Moreover, to subvert traditional morality altogether, even in the name of privacy, might mean to subvert the very foundations of our commitment to human rights in the first place—a fundamentally moral commitment that is far from ethically self-sustaining...
...What seemed literally clear from Griswold (1965), however, was the necessary intersection of privacy and marriage...
...Massachusetts, conforming to Griswold, had interpreted its own ban on contraceptives to permit distribution to the married, but not to the unmarried, thereby, the state argued, furthering the concededly valid state goal of discouraging fornication...
...Evangelical opposition to abortion is barely distinguished from the Catholic opposition, and both are linked indiscriminately to clinic violence...
...At the time, when many of us were, with cheerful defiance, enjoying the countercultural pleasures of "lifestyle freedom," that extension seemed obviously correct—to confine the privacy right to Book discussed in Ihis essay Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, by David J. Carrow...
...the morality tale it represented was about the meaning and reach of family and community responsibility...
...Nor do they seem to have reflected upon the delicate role of the 19 Supreme Court in relation to state political process and the larger question of selfgovernment, especially when an issue as morally complex as abortion is involved...
...rivacy" as a "right" is very different from restrained affirmation of a "liberty" constrained by tradition: the latter leaves only a limited role for the federal courts with respect to "sexuality...
...Only a harder case, such as the question of state authority and individual choice raised by polygamy for example, might seriously strain the compatibility of marital autonomy and state powerlessness...
...In that regard, it is notable that Justice Harry Blackmun's draft opinion in Roe would have extended full "privacy" protection only through the first trimester (twelve weeks...
...implicitly, one is told, there are no standards by which to judge whether one is making a virtuous or justified choice...
...That assumption was shattered by the important, though often historically understated, case of Eisensiadt v. Baird (1972...
...As with marriage, the early church had wrested control of the definition of human life from the state...
...which (students were taught) dealt a blow against archaic tradition and outmoded repression (that is, latent Puritanism and increasingly vocal Catholicism) by striking down a law that banned the use of contraceptives even by married couples...
...Something had gone wrong...
...As with Griswold, legalists might quibble with Roe\ precise formulation (for example, was it a question of "liberty" or "equality...
...To point out the artificiality of the public/private distinction, however, is not to say that the state should make every abortion decision, but rather to suggest that seeing the issue as one of privacy (which Garrow celebrates) obscures ethical issues, and obfuscates the extraordinarily difficult question of religion's relation to public morality in a pluralist culture...
...Freedom of choice with respect to sexuality and procreation, meaning territorial control of one's body as against the coercive forces of repressive traditionalism, self-evidently entailed abortion along with contraception...
...Does Garrow's wonderfully wellresearched book explain why, or does it simply repeat the story of enlightened progress which has come to seem threadbare and myopic...
...Some lament the consequent loss of protection afforded to the unconventional (for example...
...We see them making sensible lifestyle and career choices themselves (like postponing pregnancy), and making strategic decisions (reform vs...
...repeal, court vs...
...Finally, of course, came Roe v. Wade in 1973, which was taken as the logical culmination of the privacy-right rationale...
...Before that political sanction had occurred, infanticide was acceptable, as were abortion and contraception...
...As stated, succinctly, by Tertullian: "What will be human is human...
...The notion of a constitutional right to privacy, moreover, deeply resonated with public consciousness...
...legislature) toward the political goal of abortion availability, but we never see them grapple with abortion as a moral question...
...emphasis on marital privacy...
...The Supreme Court opinions that emerged from this process seem eerily unconsidered, as if even the justices never contemplated the theoretical and practical implications of privacy as a right...
...Hence Robert Bork's rejected nomination to the Supreme Court in 1987: Bork...
...According to Garrow, Blackmun was prodded into extending the period to the point of viability by Thurgood Marshall's law clerk, Marsh Tushnet (now a law professor and constitutional law authority...
...As Daniel Callahan has pointed out (The Troubled Dream of Life, Simon and Schuster, 1993), to label a life-and-death question a mailer of purely "private choice" is to trivialize it...
...In fact, Casey is not a ringing reaffirmation of Roe, but a substantive retreat (to be worked out by lower courts interpreting the scope of increased state regulatory power...
...Yet, at one point in Garrow's text, he dismisses such concerns as instances of Guttmacher just "covering his backside...
...Garrow is quick to appreciate the pivotal character of Eisenstadt: Instead of three players—state, married couple, individual—the privacy game was now reduced to a dual contest—state vs...
...But treating sex as a legally established "right" is as reductionist and misleading as approaching food as a kind of refueling operation...
...Decisions like Casey allow for more diffusion of authority—federal government, state government, individual, and implicitly, tradition itself, including theological tradition...
...Garrow assumes, without question or analysis, that the ethically appropriate goal for abortion reform was the nationwide availability of abertion-on-demand...
...The Court's decision (in the 1986 Hardwick case) not to include homosexuality within the protected realm of privacy was thus, at one level, arbitrary and unprincipled (Garrow says it was based on "prejudice,'" noting that Justice Lewis Powell, once he retired, regretted having voted with the majority...
...One cannot help but wonder whether a moral compromise based on, for example, timing, might have led to a less divisive and ethically more satisfying resolution than our current morally arbitrary pattern of abortion availability—based on factors like wealth, geography, and the fears 20...
...For example, Garrow emphasizes the unexpected defeat of a Michigan repeal referendum otherwise supported by public opinion polls...
...This approach, in contrast to the privacy right formulation of Roe, was most evident in the Court's 1990 decision in the Cru-an "right-to-die" case...
...The public, troubled by the specter of infanticide, has always been more willing to accept unrestricted access to early abortion...
...and/or moral qualms of physicians...
...In 1972 the Supreme Court almost perfunctorily extended the "right" to use contraceptives to the unmarried—turning marital privacy into a right of individual autonomy...
...if constitutional rights meant anything, they meant that the police could not invade marital bedrooms (in Douglas's memorable but implausible image) to ensure that birth control practices conformed to religious doctrine as enforced by state law...
...To label that question one of private rights alone is, quite literally, an act of "privation" (to draw upon a connection pointed to by Saint Augustine), depriving it of shared moral and communal significance...
...But it is hard to imagine, except perhaps from the very peculiar vantage point of 1965, that unconventional sexual morality could be sanctioned by an institution as structurally fragile as our federal courts...
...but few doubted the reasonableness of the result...
...There the Court refused to recognize a privacy right, locating the individual living-will option and the right to refuse treatment in traditional common law and substantive due process liberty, while otherwise strongly approving the authority of the state and, implicitly, of traditional morality, on questions of life and death...
...Law Professor Kathleen Sullivan in her New Republic review of Garrow, May 30, 1994), a protection which was a strength of the right to "privacy" as pure autonomous choice...
...Nothing in Roe stands between state and individual, as marriage had seemed to in Griswold...
...In fact, despite his title, Garrow's research suggests that the relation between privacy and sexual freedom was always ambiguous, and virtually unanalyzed by the Supreme Court...
...For example, whatever ethical position one takes with respect to abortion in the case of Sherri Finkbine (a Thalidomidc deformity case, which caused a dramatic shift in public attitudes), that case was about neither sexual freedom nor privacy...
...THE LIMITS OF LIBERATION The Court & the sexual revolution ALAN FREEMAN and ELIZABETH MENSCH ^¦|^k^^^H ost law students of the ^^^B^^^J late 1970s learned the ^^^^0^^| conventional liberal ver^^H ^^H sion of constitutional IHH HH privacy-right history...
...Its protagonist was a married mother of four and a "Romper Room" TV hostess...
...At another level, however, it was a return to Griswold's emphasis on social traditionalism...
...The post-1972 Eisenstadt constitutional model suggests that the only alternative to state control is to pretend that abortion is just an individual matter, despite its obviously communal character...
...David Garrow began to research his book around the time of Bork's defeat...
...marriage would be to sanction the intrusive traditionalism that Griswold...
...For the most part, Garrow's description of reform advocates portrays a mindset characteristic of late1960s reformist legal culture, one that saw litigation (especially in federal courts) and legislation as fungible political moves to be chosen, or not, based solely on strategic considerations...
...As against the backdrop of public ambivalence about abortion as a moral question (a fact noted by Garrow, but never explored or explained), Garrow's abortionrights advocates seem strangely bloodless and amoral...
...Yet those polls actually showed wide support for access to early abortions, whereas the defeated repeal measure would have deregulated second-trimester abortions as well...
...In the absence of coherent mediating structures, moreover (for example, churches, or state and local governments as occasions for participatory moral dialogue), the attempt to affirm tradition may be fanciful at best, and just as divisive as its rejection...
...rightly understood, meant to declare illegitimate, despite the Court's (tactical...
...and Casey was at least in part about precedent and judicial authority...
...One might as well be choosing ice cream flavors...
...Hardwick was a decision to halt the development of constitutional privacy rights, certainly as to sexuality...
...Those who sought abortion rights spent endless hours devising ways to invoke judicial power against political opponents: The state/self model implicates the state even in "private" decisions—a point well understood by critics of the Supreme Court's earlier extravagant protection of private contract and property rights as against Progressive Era and New Deal legislation...
...That dichotomous formulation helps to explain why abortion posed such an intractable problem: there was no moral source of authority to be recognized except the individual or the state...
...Garrow's very title, by jumbling "liberty," "sexuality," and "privacy," hopelessly confuses this point, suppressing nuance and misleading readers...
...Reading Garrow, one would never suspect that there might be a little subversive, erotic zing to premarital sex, or gay sex, or pornography...
...22: which has come to seem "real" and "authentic" in ways that communal ties or theological categories no longer do...
...That unexamined link between abortion, privacy rights, and sexuality has clouded the complex issue of abortion, as the public may have understood better than either Garrow or the justices...
...Here Garrow misinterprets the recent direction of the Court...
...Those who endorsed judicial enforcement of such rights could logically assume the Court would extend similar protection to gay sexuality: if anything is basic to the private "self," in modern consciousness, it is sexual expression...
...Blackmun is portrayed as oddly unaware of the potential significance of this choice...
...Their ethical world (as depicted by Garrow) is astoundingly flat...
...His goal was to affirm the liberal legal account of the right to privacy...
...More significantly for the long run...
...and both were crucial for gender equality...
...Garrow skillfully shows that the Supreme Court cases he describes (especially Griswold and Roe) did not spring forth in splendid isolation, but emerged from a context of political controversy, state court litigation, and strategic decision making, all involving a variety of people, some arrogant, some a little crazy, and some admirable...
...In an elusive opinion by another legendary liberal...
...Griswold announced a new right of marital privacy, located, according to legendary liberal Justice William O. Douglas, in "penumbras" "emanating" from the Bill of Rights...
...He points out that by the time of Roe many abortion reform advocates (such as Alan Guttmacher), despite earlier reservations, had shifted from favoring gradual reform to favoring abortion-on-demand...
...Moreover, Garrow seems not to comprehend why one might oppose abortion...
...Even by then, however, smooth "progress" had been replaced by bitter social disruption over abortion, and by judicial retreat from the privacyright rationale...
...The answer to both questions is "yes"—hence, at times, there is an odd dissonance in the story he tells...
...For Garrow, all sexuality 21 seems subsumed within a kind of suffocating, rationalist, liberal Protestant model...
...The Court could affirm and even celebrate marriage through judicial insistence that the state not interfere with marital sexual expression...
...In fact, and contrary to Garrow's thesis, under reform statutes, de facto standards for therapeutic abortions were starting to loosen before Roe...
...Justice William Brennan, the Court announced that since privacy belonged not to married couples but to individuals, the state could not discriminate against the unmarried with respect to availability of birth control...
...The church's proscription of all three practices was an extraordinary statement of the universal, apolitical nature and value of human life...
Vol. 121 • October 1994 • No. 18
