To:

Zcom_simple
Home » ZMag » Michael Bronski » Abortion Rights and Gay Rights
?1295269164

May 2006

Volume , Number 0
Activism

There are no articles.

Commentary

There are no articles.

Culture

There are no articles.

Features

Media Activism
Alison Weir


Theopolitics
Michelle Swenson


When War Crimes Are Impossible
Norman Solomon


Hotel Satire
Lydia Sargent


Classics
Anna Popkin


Book Excerpt
Site Administrator


Government
Don Monkerud


Africa
David Model


Special Report
Jorge Martín


Psychology
Bruce E. Levine


Mexico
Sonali Kolhatkar


Indigenous Organizing
Julia Kendlbacher


Interview
Andrej Grubacic


Gay & Lesbian Community Notes
Michael Bronski


Conservative Watch
Bill Berkowitz


Mideast
Phyllis Bennis


Reproductive Rights
Eleanor j. Bader


Immigrant Organizing
David Bacon


Zaps

There are no articles.

NOTE: Z Magazine subscribers and sustainers have access to all Z Magazine articles here and in the archive. The latest Z Magazine articles available to everyone are listed in the Free Articles box at the top of the table of contents, and are starred in the list below. Questions? e-mail Z Magazine Online.

Abortion Rights and Gay Rights

By Michael Bronski
PDF Version
Printer Friendly Version
May 2006
 Change Text Size a- | A+

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). 
Loading_border