This big book tells three sequential stories. First, it relates how the forty-year struggle to overturn Connecticut’s criminalization of even married couples’ use of contraceptives finally triumphed in the landmark 1965 Supreme Court right-to-privacy ruling in Griswold v. Connecticut.
Second, Liberty and Sexuality details how that recognition of a fundamental right to privacy in Griswold opened the constitutional door to a previously unimagined argument: that women with unwanted pregnancies ought to have access to legal abortion as a fundamental right. The earliest abortion law reformers had sought liberalization of the strictures that had outlawed—but not actually prevented—almost all abortions since the middle of the nineteenth century, but between 1966 and 1969 that goal of reform was quickly supplanted by repeal: state antiabortion laws could be challenged in federal court as infringements of women’s newly recognized constitutional right to privacy. Out of that litigation campaign—a quest that got under way late in 1969 and triumphed in January 1973—came both Roe v. Wade and its lesser-known but equally important companion case, Doe v. Bolton. The second part of Liberty and Sexuality—chapters five through eight—tells the story of the early activists and young lawyers who created those cases and the Supreme Court justices who in 1972–1973 accepted their constitutional claims.
Third, Liberty and Sexuality describes the twenty-five years of abortion litigation and congressional debates that have transpired since Roe and Doe. The first portion of that aftermath culminated in part in the huge setback that sexual liberty claims suffered in 1986 with the explicitly antigay Supreme Court decision in Bowers v. Hardwick. Far more encouragingly, repeated threats to Roe’s protection of abortion rights, threats that in 1989–1991 looked likely to prove fatal, surprisingly climaxed instead in the landmark 1992 Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey which powerfully reaffirmed Roe’s constitutional core.
The second portion of the post-Roe story, the many developments that have occurred since 1993, is newly added to this edition of Liberty and Sexuality. The year 1994 witnessed two double homicides of abortion workers by right-to-life terrorists, but it also witnessed passage of a comprehensive federal statute, the Freedom of Access to Clinic Entrances Act (FACE), which quickly put an end to the violently obstructive mass protests that had besieged so many abortion clinics during the late 1980s and early 1990s.
Antiabortion protests were well past their peak by the time of Roe and Doe’s twenty-fifth anniversaries in January 1998. However, in one of the two most important developments of the post-Casey years, abortion opponents garnered significant political success by making “partial birth” abortions the subject of debate in legislatures all across the country. Courts constrained antiabortion legislation less comprehensively than they limited antiabortion protests, but the Supreme Court, in a crucial post-Casey milestone, gave gay Americans their greatest legal victory ever in a 1996 ruling, Romer v. Evans, that left Bowers in symbolic shreds.
Roe v. Wade’s creation and Roe v. Wade’s legacy represent one of the two greatest stories—the other is Brown v. Board of Education—in twentieth-century American legal history. Liberty and Sexuality seeks to tell that story as comprehensively as possible, for it—like Brown—has altered and improved the lives of millions of Americans.