Book about most personal of decisions lacks personal touch

February 06, 1994|By Lyle Denniston

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

Author: David J. Garrow

Publisher: Macmillan

-! Length, price: 705 pages, $28

The architecture of a monumental Supreme Court decision has footings that reach deeply into the past and broadly across American society. Roe vs. Wade, the historic January 1973 decision creating a constitutional right to abortion, is such a decision.

For all the criticism suggesting that Roe suddenly rose up on the constitutional landscape out of the shimmering imagination of Justice Harry A. Blackmun, this decision might have been foreseen generations earlier. It simply took time to build the foundations, something that supported the final structure.

Whether one thinks of the result as a cathedral or as an eyesore, it stands there, much of it still intact after 21 years, and it deserves continuing close study. With another Roe anniversary just a few weeks behind us, Macmillan Publishing has brought out a book that is likely to rank as the definitive study of the decision's origins.

For more than three-quarters of a century, a "right of individual privacy" -- a right to be let alone by the government -- was emerging in American law. But perhaps few in America really noticed it until the Supreme Court relied upon the concept in Roe. It declared that a woman has a constitutional right to end a pregnancy, with only the consent of a doctor in the early stages of pregnancy and to a substantial degree throughout pregnancy.

No one has examined Roe more closely (particularly its historic footings) than Pulitzer-winning author David J. Garrow, now a Twentieth Century Fund fellow and visiting history professor at Cooper Union.

For six years, with a research effort that can only be called Herculean, Dr. Garrow has picked up and described quite literally every building stone that went into Roe. That labor is manifested not only in the massive text, but also in 950 footnotes, spread over 203 pages. The reader should be warned: Do not skip the footnotes, as many of them must be read to get the full story.

(Dr. Garrow does overdo it a bit. For example, he cites 19 sources as repeating the error of assigning the wrong gender or title to Estelle Griswold, the heroine of the main precursor decision on the constitutional right of privacy. This is thoroughly objectionable snobbery -- or mere academic showing off.)

One of the particular contributions of this book is the revelation of many fascinating behind-the-scenes details of Supreme Court decision-making. It's the product of Mr. Garrow's very capable work digging through the voluminous private papers of several justices -- William J. Brennan Jr., Thurgood Marshall and William O. Douglas, in particular. If this book achieved nothing else, it would be a remarkable testament to the value of open access to the justices' papers -- the sooner the better.

The diligence of the research, and the weighty scholarship it holds up, however, are not enough to save this book from its singular and truly tragic flaw. It seems not to have been written for its intended audience: the general trade (not the academy). It is not an easy book to read, even for someone who may be absorbed in the history of the right of privacy in modern America.

After having read every word, down to the last line of text on Page 705, one puts the book aside with the sad but overwhelming realization that Dr. Garrow has not written a single memorable line -- not even a phrase that could be remembered as felicitous.

The story is told in an almost aggressively bland manner: It is clean but graceless, straightforward but sometimes thoroughly dull, well-paced at times but never stirring. The story is forced to tell itself by its own facts, or by the soaring language that emerges from someone else: some lawyer or some judge. The people, the central players, most of whom enjoy Dr. Garrow's obvious affection and/or admiration, must bring forth their own personalities in what they say or write.

One wonders, over and over again during the reading, what the editors at Macmillan were doing as they processed this manuscript. Was there no one there asking for vitality, for drama, for strong story-telling? This book serves in the end as an example of extravagantly drawn-out journalism; it is not good history.

Before Dr. Garrow's eyes, personal, social, political and constitutional incidents do not march grandly by in a magnificent pageant. History inches along, sometimes laboriously, fact by fact by fact. Very little of it is portrayed against a broad background of cultural history on the move. One has no idea, from this volume, what else is happening to shape the way Americans think about themselves and about their rights as the pursuit of privacy goes on year by year, decade by decade.

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