Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade

Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade

by David J. Garrow

Paperback(First Edition, With a new epilogue)

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Liberty and Sexuality is a definitive account of the legal and political struggles that created the right to privacy and won constitutional protection for a woman's right to choose abortion.

Roe v. Wade, the landmark 1973 U.S. Supreme Court ruling that established that right, grew out of not only efforts to legalize abortion but also out of earlier battles against statutes that criminalized birth control. When the U.S. Supreme Court in 1965, in Griswold v. Connecticut, voided such a prohibition as an outrageous intrusion upon marital privacy, it opened a previously unimagined constitutional door: the opportunity to argue that a woman's access to a safe, legal abortion was also a fundamental constitutional right.

Garrow's essential history details both the unheralded contributions of the young lawyers who filed America's first abortion rights cases and also the inside-the-Supreme Court deliberations that produced Roe v. Wade.

In this updated and expanded paperback edition, Garrow also traces the post-Roe evolution of abortion rights battles and the wider struggle for sexual privacy up through the 25th anniversary of Roe in early 1998.

Product Details

ISBN-13: 9780520213029
Publisher: University of California Press
Publication date: 12/09/1998
Edition description: First Edition, With a new epilogue
Pages: 1064
Product dimensions: 6.12(w) x 9.25(h) x 2.20(d)

About the Author

David J. Garrow is Presidential Distinguished Professor at Emory University's School of Law. He received the Pulitzer Prize and the Robert F. Kennedy Award for his biography of Martin Luther King, Bearing the Cross (1986). His earlier books include The FBI and Martin Luther King, Jr. (1981) and Protest at Selma (1978).

Read an Excerpt

Liberty and Sexuality

The Right to Privacy and the Making of Roe v. Wade

By David J. Garrow


Copyright © 1994 David J. Garrow
All rights reserved.
ISBN: 978-1-5040-1555-4


The Waterbury Origins of Roe v. Wade

Katharine Houghton Hepburn had never doubted that Sallie Pease was an ideal president for the Connecticut Birth Control League (CBCL). Hepburn's next-door neighbor in Hartford since 1927, a Smith College graduate, and the mother of three school-age boys, Pease was only thirty-seven — nineteen years Hepburn's junior — when she became league president in 1934. For eleven years, since 1923, when nationally noted birth control crusader Margaret Sanger had first visited Hartford, Kit Hepburn had played a central role in holding the league together. Little headway had been made toward the league's goal of winning legislative repeal of Connecticut's unique 1879 criminal statute that made the use and/or prescription of any form of birth control a crime for both woman and doctor alike, but in the summer of 1935 Sallie Pease had taken the lead in the league's dramatic but initially unpublicized decision to go ahead and simply open a public birth control clinic in Hartford. Just as the league had hoped, no one moved to enforce the law or to close the clinic, and in its first year of operation the clinic's women doctors provided birth control counseling and devices to over four hundred married women, many of them first- or second-generation ethnic immigrants from Hartford's poorer neighborhoods. Quietly ecstatic at their success in extending to poor women the same medical advice that privately was available to those who could afford family physicians, by the summer of 1936 the Connecticut League also had clinics functioning in Greenwich, New Haven, and Stamford. The following two years witnessed similar growth and expansion, as clinic services opened in Norwalk, Danbury, New Britain, New London, and Bridgeport. The Bridgeport city prosecutor expressly told inquiring reporters that the 1879 statute represented no bar to the services that the Bridgeport clinic was providing, and six months later, in October of 1938, the league achieved its hope of having clinic services available in all of Connecticut's large cities when a one-morning-a-week clinic quietly opened in downtown Waterbury, Connecticut's most ethnically diverse — and most heavily Roman Catholic — city.

Sallie Pease and Kit Hepburn were rightfully proud of the tremendous progress that had been attained by simply going ahead and opening clinics, rather than by unsuccessfully continuing to petition each biennial session of the Connecticut legislature for a statutory change, as the league had from 1923 through 1935. Neither public officials nor religious groups seemed actively interested in mounting any effort to enforce a now seemingly dead-letter law, and the Connecticut League would be able to continue moving forward with its real purpose of providing actual services to more and more needy women who wanted to limit the number of their children.

So when the Connecticut League convened for its annual luncheon meeting at the Farmington Country Club on Thursday, June 8, 1939, Sallie Pease had no hesitancy in speaking plainly about their new successes. The general director of the national Birth Control Federation of America (BCFA) — the newly renamed organization that was the direct descendant of Margaret Sanger's initial work two decades earlier — Dr. Woodbridge E. Morris, had himself come up to central Connecticut for the luncheon, and while Hartford reporters took notes on Morris's remarks about the regrettable level of maternal mortality in America, they also listened to Sallie Pease's presidential report, in which she highlighted the opening of the Waterbury clinic as the league's most prominent achievement in the preceding year. What was especially notable, she stressed, was that the Waterbury clinic, unlike any of its other Connecticut predecessors, was operating "in a public institution," in the Chase Dispensary outpatient building of the Waterbury Hospital. So far, Pease said, it has "received no publicity, but it is there in working order and will grow."

Sallie Pease was a brash and flashy person, quite different in style and persona from the Greenwich and Fairfield County women who comprised much of the Connecticut League, and she hadn't given any thought to the possible press coverage of her luncheon remarks. Friday morning's Hartford Courant ran a modest story on page twenty-four, noting in passing the newly announced Waterbury clinic in the Chase Dispensary, but the Associated Press put the Courant story on the state news wire, and Friday morning's Waterbury Republican printed it on page fifteen, under a headline reading "U.S. Maternal Mortality Rate Reported Poor." Several paragraphs down, however, it stated how Pease had reported "that during the year the first clinic in a public institution in Connecticut was opened at the Chase Dispensary in Waterbury."

The Waterbury Republican, and its sister paper, the afternoon Waterbury American, were not the city's only newspapers, however. There was also the afternoon Waterbury Democrat, which in many ways — as its name indicated — was the antithesis of the Republican. Republican-American publisher William J. Pape had been an outspoken and crusading opponent of the city's mostly corrupt Democratic political establishment, and it was in large part because of the Republican's efforts that Waterbury Mayor — and Connecticut Lieutenant Governor — T. Frank Hayes and over twenty fellow defendants were currently on trial for looting the city treasury. The Democrat had spoken up for the Hayes regime, and if the Pape papers were a voice for the Anglo-Saxon Yankee population that found its political home in the Republican party, the Democrat was viewed as the voice for Waterbury's Irish, Italian, French-Canadian, and Lithuanian immigrant populations. Some 72,000 of Waterbury's 99,000 citizens were either first- or second-generation immigrants to America, and while the ethnic parishes where most of them attended church might differ greatly in custom and in language, they were almost all Roman Catholic.

Friday afternoon's Waterbury Democrat featured a front-page headline, "Birth Control Clinic Is Operating In City," and quoted Chase Dispensary supervisor Jeannie Heppel as confirming Sallie Pease's unintentional announcement. "Pastors of Catholic churches had no comment to make today," the Democrat went on, but the paper hardly had to tell its readers that Connecticut's Catholic hierarchy, the Diocese of Hartford, was a staunch and unyielding opponent of birth control. Church representatives had turned out at every legislative session from 1923 to 1935 to oppose the CBCL's petitions for statutory change, and just four weeks earlier the Reverend John S. Kennedy, associate editor of the diocese's weekly newspaper, the Catholic Transcript, had been prominently quoted in the Democrat as telling three hundred Waterbury Catholics at a special Mother's Day Communion breakfast that he was puzzled as to why some Connecticut prosecutors were "so anxious" to go after bingo game operators "while birth control clinics were allowed to flourish." One Hartford woman who had received a birth control circular, Kennedy said, had contacted the Transcript to complain. Kennedy's remarks, the Democrat volunteered, had been "most inspirational."

Different readers reacted to the Democrat's story in different ways. Waterbury Hospital superintendent Dr. B. Henry Mason and gynecology clinic chief Dr. Charles L. Larkin both told reporters that no "birth control clinic" was operating at the Chase Dispensary, and Saturday's Republican prominently headlined their claim — "Doctors Deny Birth Control Clinic in City" — despite Heppel's statements to the contrary. The problem, Dr. Mason explained, was simply a matter of terminology. A gynecological clinic, the Republican said, "includes in the normal course of its work the giving of some information on birth control." But such advice, Mason said, "is provided purely on a health basis. A woman whose health would be seriously endangered by child bearing might get medical advice at the clinic on birth control, but not robust, healthy women." Dr. Larkin agreed: "That's a long way from the popular conception of a birth control clinic where any woman may go who doesn't want to have children."

By Saturday morning the hospital staffers finally had their stories straight, as that afternoon's American emphasized: "Miss Heppel Agrees With Dr. Mason: Waterbury Has No Birth Control Clinic." But Heppel's actual statement, much like Mason's and Larkin's, did not exactly square with the headline: "Nobody can come here for information unless they are referred by doctors for reasons of their health," supervisor Heppel explained. "People can't just come in as they please and get information." Clinic sessions were held each Tuesday, the American added, had begun last October, and were actually conducted by two young doctors, William A. Goodrich and Roger B. Nelson, who reported to Larkin.

But the hospital officials were not the most significant readers of the Waterbury press. Friday's Democrat had observed that the city's Catholic clergy "might" refer the matter to Hartford Bishop Maurice F. McAuliffe, but Father Eugene P. Cryne, president of the Catholic Clergy Association of Waterbury, already had called a special meeting of the association for Saturday morning in the rectory of Immaculate Conception parish, Waterbury's oldest Roman Catholic church. Cryne was not the most prominent or the most senior of Waterbury's Catholic clergy, but Immaculate's own pastor had been formally installed only one year earlier, and Monsignor Joseph Valdambrini, pastor of Our Lady of Lourdes parish and the son of a Vatican banker with a royal title, was out of town on a four-month visit to Italy. A fifty-six-year-old Connecticut native, Cryne, like many Connecticut priests, had received his religious training at St. Thomas Seminary. He had become pastor of St. Patrick's Church, one of Waterbury's more modest parishes, but with seventeen hundred members, mostly of Irish background, in 1933, after having previously served in a junior role at Immaculate and then in parishes just outside of Waterbury.

Eugene Cryne was, however, in the eyes of his fellow priests, "a very forceful individual" who had a very definite sense of right and wrong. "When rules and regulations were made, they had to be abided by," a younger priest who served under Cryne explained. Although a "very kind" man, Eugene Cryne was "a very determined person." And the resolution that was drawn up at that special Saturday morning meeting of Waterbury's Catholic clergy at the Immaculate rectory was a very determined and very forceful resolution:

Whereas, it is the teaching of the Catholic church that birth control is contrary to the natural law and therefore immoral, and

Whereas, it is forbidden by statute law to disseminate birth control information for any reason whatsoever or in any circumstance, and

Whereas, it has been brought to our attention that a so-called birth control clinic, sometimes called a maternal health center, is existing in Waterbury as admitted by the superintendent of Chase Dispensary, according to the papers, therefore, be it

Resolved, that this association go on record as being unalterably opposed to the existence of such a clinic in our city and we hereby urge our Catholic people to avoid contact with it and we hereby publicly call the attention of the public prosecutors to its existence and demand that they investigate and if necessary prosecute to the full extent of the law.

William B. Fitzgerald, the State's Attorney in Waterbury, had like Father Cryne seen the stories in the Friday and Saturday Waterbury newspapers. And while news of the Catholic Clergy resolution did not appear in the Sunday Republican, Bill Fitzgerald certainly heard of it Sunday morning at the latest, for he faithfully attended St. Margaret's Roman Catholic Church, and that morning — as Bill Fitzgerald remembered even decades later — the text of the clergy's resolution was read from the pulpit of each and every Catholic church in Waterbury and in surrounding towns.

Bill Fitzgerald had been State's Attorney for only one year. Thirty-seven years old, a Waterbury native, and an alumnus of Holy Cross College, Fitzgerald had opened a Waterbury law office immediately after graduating from Harvard Law School and passing the bar in 1926. Two years later he became a prosecutor in the city's misdemeanor court, and in 1931 he became assistant state's attorney, both part-time positions that supplemented an attorney's private law practice. In May 1938, however, the special grand jury that had been impaneled to investigate Mayor Hayes and the city's financial scandals issued a detailed, seventy-four-page report to accompany its charges, and included in it was a brief but harsh condemnation of Fitzgerald's boss, State's Attorney Lawrence L. Lewis, for failing until very recently to take any action against the presence of gambling devices in Waterbury social clubs. "The fact that these violations of the law were known but not prosecuted by State's Attorney Lewis," and others, "is a matter of distinct concern to this Grand Jury. The law enforcement authorities of the city and of the district are, therefore, deserving of the severest censure for having permitted this widespread and flagrant violation of law to continue."

Larry Lewis felt he had no choice but to resign and return to full-time private practice in his firm of Bronson, Lewis & Bronson, but Bill Fitzgerald rebuffed Lewis's notion that Fitzgerald too had to step down, indicating instead that he'd like to be Lewis's successor. That choice lay with Waterbury's local judges, particularly resident Superior Court Judge Frank P. McEvoy, the first Roman Catholic member of Connecticut's premier trial court bench, and on June 6, 1938, Bill Fitzgerald received their official blessing and became the first Roman Catholic State's Attorney at Waterbury. Fitzgerald voiced high praise of Larry Lewis at his swearing in, but moved swiftly to eliminate gambling from the city, with widespread raids receiving coverage even in the New York Times.

Bill Fitzgerald "had a first class mind," one lifelong attorney friend and courtroom adversary later remembered, but he was "a very, very strict Catholic." Another attorney friend, also once a communicant at St. Margaret's, agreed that Fitzgerald was "very bright," but was nonetheless "a very parochial, insular guy," someone "very strongly receptive to and influenced by the clergy." Bill Fitzgerald was active in a number of civic and church groups, and, like Judge McEvoy, served on the advisory board of Waterbury's Diocesan Bureau of Social Service, which was directed by Father Eugene Cryne. But most people who knew Bill Fitzgerald felt that the pressure to act came largely from within, rather than from without, that even in the absence of a phone call, Bill Fitzgerald believed there was only one thing to do. After all, just one year earlier his predecessor had had to resign because of public complaints that he had failed to enforce the often-ignored but nonetheless still-valid gambling laws aggressively, and the old 1879 prohibition against birth control was certainly still on the statute books. Yes, Bill Fitzgerald was a "devout" Catholic, but "I don't think Fitzgerald was any crusader at all," his one-time fellow member of St. Margaret's emphasized. As almost everyone saw it, the state's attorney simply felt he had to do his duty. Eight days later Fitzgerald would indicate that he had been "acting upon complaints" in the wake of the newspaper stories, but probably as early as Saturday morning Bill Fitzgerald had decided that an active investigation of the Chase Dispensary clinic would have to be mounted.

Monday morning's Republican headlined the Catholic Clergy Association's resolution, but devoted more attention to the continuing claims that the clinic was not what its critics said it was. Like Doctors Mason and Larkin, Dr. William A. Goodrich was portrayed as minimizing the clinic's work: "Out of 250 women who come to the clinic yearly, he said, an average of perhaps 15 come for birth control advice. They get the same advice, he said, that women who can afford personal physicians get from their own physicians." More pointedly, the Republican also highlighted a conversation the newspaper had had with a Hartford attorney who had represented the original CBCL clinic there. He asserted "that there is apparently no state statute under which a birth control clinic can be prosecuted as long as the clinic is operated on a health basis," the Republican said. "The lawyer pointed out that prohibiting the giving of birth control information to women for health reasons would run counter to the public health laws of the state. The Hartford authorities were asked to prosecute, he said, by the Hartford Catholic clergy, and decided at the time that there was no basis for prosecution."


Excerpted from Liberty and Sexuality by David J. Garrow. Copyright © 1994 David J. Garrow. Excerpted by permission of OPEN ROAD INTEGRATED MEDIA.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents


1. The Waterbury Origins of Roe v. Wade,
2. No Further Service: Connecticut's Struggle for the Legalization of Birth Control, 1940–1953,
3. One Vote Shy: Estelle Griswold, Fowler Harper, and the U.S. Supreme Court, 1954–1961,
4. Creating the Right to Privacy: Estelle Griswold and the U.S. Supreme Court, 1961–1965,
5. Lonely Voices: Abortion Reformers and the Origins of Change, 1933–1967,
6. From Reform to Repeal: The Right to Abortion, 1967–1969,
7. Into the Courts: Roe, Doe, and the Right to Abortion, 1969–1971,
8. The Right to Abortion and the U.S. Supreme Court, 1971–1973,
9. Liberty and Sexuality Since Roe v. Wade,
Acknowledgments (1998),
About the Author,

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