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By Root 1915 0

step further. Baird lived in Massachusetts. Under Massachusetts law, only doctors or druggists could distribute contraceptives, and only to married people. Baird gave a lecture about contraception; and when he finished, he gave out a “package of Emko vaginal foam to a woman in the audience.” 114 He was arrested and convicted, but on appeal the Supreme Court threw out his conviction; the Court held the statute was unconstitutional. In this case, the Court quietly dissolved the line between married and unmarried people; and the “right of privacy,” excavated from its shadowy textual tomb, was clearly on the move.

The next step, which was the boldest, extended the right of privacy to the case of abortion. Abortion, as we have seen, was first criminalized in the late nineteenth century. In many states, the laws remained extremely restrictive in the twentieth century. Thousands of women got abortions, one way or another; back-alley abortions were common but dangerous. A study published in 1936 estimated that half a million abortions were performed per year in the United States.115 But there were not many arrests; and juries, in general, tended not to convict abortionists. Prosecutions were more likely to be successful where there was a “victim,” that is, where the woman died.116 And this, alas, was not so rare an occurrence.

In 1962, the thalidomide tragedy burst on the world: women who had taken this drug during pregnancy gave birth to children who were pitifully and horribly deformed. The drug, a sedative, was not generally marketed in this country, but Sherry Finkbine of Phoenix, Arizona, had taken it. When she learned what the drug could do, she tried to get an abortion at her local hospital, but the county medical society said no. Her search for a legal abortion—in the end she ran away to Sweden—was headline news and focused attention on the human dimensions of abortion.117

With Roe v. Wade (1973), the Court stepped into the abortion quagmire. 118 Roe v. Wade struck down all the state laws that made abortion a crime—at least as far as abortion in the early months of pregnancy was concerned. It would be hard to think of a more controversial decision in this century. Almost immediately, the case became intensely political; it has remained that way. It galvanized opposition groups into action; equally fervid groups sprang to its defense.

One charge leveled against the case was that it created a new constitutional right out of whole cloth, that the Founding Fathers would whirl in their graves if they saw how far the Supreme Court had gone in usurping power. But Roe v. Wade grew out of a specific background, legal and social. Its legal background was, as we have seen, the line of cases that led from Griswold. The social background (which underpinned Griswold as well) was, of course, more crucial and complex.

The Griswold case, for all its quirky language, seems to be snugly secure in the pantheon of legal doctrine; no one dares attack it, if only because the idea of making contraception a crime seems so out of the question in the 1990s. Roe v. Wade is another story. Its later history, too, has been highly complex. The Court’s decision in the case was a solid seven to two. But the controversy refused to die down. In the years after Roe v. Wade, abortion moved, surprisingly, into the very center of the political stage. The decision was denounced and defended in terms that became more and more strident over the years. Republican Party platforms from 1980 on promised to amend the Constitution “to restore protection of the right to life for unborn children.” In the event, the Republicans, though they won three presidential elections, could not deliver on this promise.

The Supreme Court was a different matter. As old justices dropped off and Reagan and Bush appointees took their place, the Court moved to the right on this issue. In the eighties, the Court chipped steadily away at Roe v. Wade without actually overruling it, until the fate of the decision hung by a hair. Some states passed repressive statutes, and challenges to