Abortion Rights and Gay Rights

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.  

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 .