Abortion Rights and Gay Rights




O

n March 6 South Dakota Governor Mike Rounds
signed a comprehensive bill that would enact a near-total ban on
abortions. He described the bill as a “direct frontal assault”
on

Roe v. Wade

, the 1973 U.S. Supreme Court decision that
gave women the right to have abortions. What he didn’t say
was that the bill is an assault on gay rights as well. 


The attack on the constitutionality of abortion rights is an attack
on the right to privacy—the same constitutional right to privacy
that in 2003 won

Lawrence v. Texas

, the Supreme Court decision
that abolished sodomy laws in the United States. In the language
of

Roe v. Wade

, a woman’s right to choose whether or
not to carry a pregnancy to term was predicated on a constitutional
right to privacy and that this “right of privacy” was
“broad enough to encompass a woman’s decision whether
to terminate her pregnancy.” 


There is little doubt that those people—be they right-wing
religious leaders, conservative politicians, or far-right ideologues—who
want to dismantle a woman’s right to choose whether or not
to carry a pregnancy to term would be more than happy to begin rolling
back the clock on all aspects of gay rights. They are not just looking
at the barely-gained right to same-sex marriage equality, but to
many other aspects of civil rights for gay people—the right
to adopt children,  to be foster parents, not to be discriminated
against, as well as the right to engage in same-sex relationships.
The preservation of abortion rights are the new line in the sand
for gay rights.  








What
exactly is the legal and constitutional connection between abortion
rights and gay rights? Conservatives are fond of—indeed, seem
to be obsessed with—arguing that there is no right to privacy
in the Constitution. They are right if you read the Constitution
as it was understood in the specific historical context in which
the founding fathers wrote it. But the Constitution is a living
document. This was clear to lawmakers as early as 1791 when the
Ninth Amendment was added to the Bill of Rights, stating that “the
enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people.” This “open
door” policy to rights “retained by the people” allows
the articulation of the “right to privacy” as forcefully
as common sense and justice mandate it. 


But the idea of constitutionally protected privacy is a fairly new
invention. Early legal cases such as

Robertson v. Rochester Folding
Box Company

, in which a woman sued a manufacturing company for
using her photograph without permission, addressed general issues
of privacy. In its 1964 decision,

Griswold v. Connecticut,

the Supreme Court ruled that a constitutional right to privacy gave
married couples the right to use contraception within marriage.
In 1967 the Court expanded the right of privacy in marriage when
in

Loving v. Virginia

they struck down state laws that forbade
interracial marriage. By 1972 the Court took up the privacy issue
of contraception again and in

Eisenstadt v. Baird

ruled that—imagine—even
unmarried couples had the right to use contraceptives. As the Court
expanded the idea of a personal right to privacy in matters of sexuality
and reproduction, it was a logical step to 1973’s

Roe v.
Wade

. In

Roe

the Court—using the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments—found support for a
constitutional right of privacy that was “broad enough to encompass
a woman’s decision whether to terminate her pregnancy.” 


One would think that this clearly articulated right to privacy would
be easily applied to issues of nonheterosexual sexuality, but that
would take another 30 years. In 1987, in

Bowers v. Hardwick

,
the Court ruled that homosexual sodomy as defined by various state
laws, which often included any and all same-sex physical activity,
was not constitutionally protected. Significantly,

Bowers v.
Hardwick

also made it clear that non-reproductive heterosexual
sexual activities were protected under a “right to privacy.”
The Justice’s arguments in the decision ranged from protecting
the heterosexual family to not wanting to overthrow “a millennia
of moral teaching” denouncing homosexuality, but they all came
down to the bottom line that homosexuality was wrong and homosexuals
didn’t have the constitutional right—the “right to
privacy”—to have sexual lives. It was in 2003, when the
Court overturned

Bowers

in

Lawrence v. Texas,

that
samesex sexual activity was finally granted constitutional protection.
(While some Justices articulated the “right to privacy”
as their legal basis for overturning

Bowers v. Hardwick

,
the “right to liberty” was also cited, as was “equal
protection,” since the Texas law was only aimed at homosexual
activity.) 


It’s shocking to realize that it was less than 3 years ago
that queer people were given the constitutional right to engage
in sexual behavior, but it is important to remember that just over
30 years ago it was illegal for unmarried heterosexual couples to
buy and use birth control. Since the mid-1960s—remember the
famous Summer of Love?—we have lived in a culture that has
promoted increased sexual freedoms. But these cultural changes and
freedoms have always been far ahead of the legal protections that
were needed to secure and support them. 


There is no doubt that there is a war against the very idea of a
“constitutional right to privacy.” We heard it in the
arguments in

Lawrence v. Texas

and we hear it explicitly
now in the language of those that are against a woman’s right
to an abortion. We heard it continually in right-wing commentary
during both the Roberts and Alito confirmation hearings. 


While

Griswold v. Connecticut

,

Loving v. Virginia

,
and

Eisenstadt v. Baird

are all vitally important decisions,
it is

Roe v. Wade

that both legally and symbolically is the
keystone to our contemporary ideas about a constitutional right
to privacy. If

Wade

is overturned or chipped away to such
a degree that it becomes completely ineffective, then there is little
doubt that the folks who have gone after

Roe v. Wade

would
also, in some form, go after

Lawrence v. Texas

. The anti-choice
lobby has been working to overthrow

Roe v. Wade

by severely
limiting its scope: parental notification laws, laws mandating longer
waiting periods before abortion, laws that require a woman to view
a sonogram of the fetus before consenting to an abortion. The constant
attacks by the political right wing on gay and lesbian family law
is part and parcel of the attack on the idea of a “right to
privacy” for gay people. One of the principal reasons that

Bowers v. Hardwick

could be separated from the legal logic
of

Griswold v. Connecticut

,

Loving v. Virginia

, and

Eisenstadt v. Baird

was that the Court decided that “none
of the fundamental rights announced in this Court’s prior cases
involving family relationships, marriage, or procreation bear any
resemblance to the right asserted in this case.” Why? Because
gay sex didn’t involve marriage, family, or reproduction. By
arguing that family and reproduction were the clear imperative behind
a “right to privacy” the Court sought to exclude homosexuals
and homosexual relationships from being covered by this right.  








Just
as they are trying to limit a woman’s right to obtain an abortion,
the right wing is moving full steam ahead to curtail the legal rights
of gay families. This can be seen not only in the legal and media
frenzy to stop same-sex marriage, but in other legal attacks as
well. These include recent laws passed forbidding gay people or
couples from adopting children, or taking in foster children, laws
that prohibit second parent adoption for gay couples, and laws that
forbid even private corporations from granting domestic partnership
rights to gay couples. They are predicated on the idea that even
if gay sex is constitutionally protected, there should be no extended
“right of privacy granted to gay families.”  


Last November 16, Dan Savage wrote an op-ed in the

New York Times

titled, “Can I Get a Little Privacy,” in which he
argued—seriously, but with a touch of humor—that liberals
should fight for a new Constitutional Amendment that would ensure
a right to privacy for everyone. It’s a great idea, but one
that has a long and very rocky road ahead of it. In the meantime,
it’s imperative for the sake of gay civil rights, as well as
the welfare of women, that queer activists fight against all laws
that chip away or try to overturn

Roe v. Wade

.





Michael
Bronski is the author of



Pulp Friction: Uncovering the
Golden Age of Gay Male Pulps



(St. Martin’s Press, 2004).