Last week, the U.S. Supreme Court heard one of the most important abortion rights cases in decades, Whole Woman’s Health v. Hellerstedt. At first blush, some LGBT folks might think that abortion rights have little to do with them. After all, gay men and lesbians don’t get “accidentally pregnant”–to quote a term used in some anti-marriage equality lower court decision of the past decade. However, LGBT rights and reproductive freedom have long been closely intertwined. At stake in both movements are individuals’ fundamental freedoms to control their own bodies and to decide for themselves the paths their lives will take. LGBT people should care about a woman’s right to a safe and legal abortion not only because it’s the right thing to do, but also because our two movements depend on each other.
Our first experience of the connection between the two movements came nearly 30 years ago when we participated in an LGBT direct action group, called “Queer and Present Danger,” which was part of the first and only shutdown of the U.S. Supreme Court. The action was organized to protest the Court’s notorious Bowers v. Hardwick decision that upheld the constitutionality of so-called “sodomy” laws that criminalized intimate sexual activity between persons of the same sex. Our group got along so well that we decided to keep working together on other pressing issues, such as HIV/AIDS and abortion rights.
At the time, during the height of the HIV/AIDS crisis, LGBT activists were pressing the Reagan administration and the federal government to end their neglect of people with HIV/AIDS. “Operation Rescue,” a well-funded right wing anti-choice group that blockaded Planned Parenthood and other clinics serving women, was also in high gear. In 1988–1989, Operation Rescue held hundreds of blockades with thousands of arrests of their members. We took part in numerous actions regarding HIV/AIDS and in “clinic defense,” where we worked to ensure access to women’s clinics despite the presence of Operation Rescue. We saw no separation between these two human rights struggles.
The U.S. Supreme Court recognizes the connection as well. Until the Supreme Court held in 1973 that women have a fundamental constitutional right to make reproductive choices for themselves, 46 states had laws interfering with a woman’s right to have a safe and legal abortion. Until the Supreme Court’s Lawrence v. Texas decision finally overturned Bowers v. Hardwick in 2003, states could imprison LGBT people for sexual intimacy. Some states even put people in jail for simply touching another person of the same sex in a sexual way. Without these decisions, the government today would still be able to exert extraordinary control over the bodies of LGBT people and women.
Recent Supreme Court decisions in favor of constitutional freedoms for LGBT people rest on prior legal victories for reproductive freedom. The Supreme Court’s Lawrence decision relied heavily on language from a key abortion rights precedent, when it stated:
“[M]atters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the [Constitution]…At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State…It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
That language comes verbatim from Planned Parenthood of Southeastern Pa. v. Casey, which, among other things, invalidated a law that required a married woman to notify her husband before having an abortion. In Casey, the Court stated that what a woman experiences by having a child “is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”
The fiercest opposition to both the LGBT and reproductive freedom movements comes from conservative Christian political forces. These groups seek not only to raise money and gain political power off these issues, but also to impose their personal religious and moral views on everyone through law. LGBT and reproductive choice supporters have fought side by side in efforts to defeat right wing ballot initiatives. Moreover, with respect to both matters, the Supreme Court has held, quoting the Casey decision: “The issue is whether the majority may use the power of the State to enforce…[their moral and religious] views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’”
As the Court stated in its 2015 marriage equality decision, “the idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’”
In this year’s abortion rights case before the Supreme Court, the reproductive freedom movement is drawing upon one of the key elements responsible for the recent successes of the LGBT movement: coming out. In 2014, Justice Ruth Bader Ginsburg attributed the “remarkable change” in lesbian and gay rights over recent years to the willingness of gay and lesbian Americans to “say who they are.” The power of LGBT people coming out and telling their personal stories has been, and continues to be, integral to achieving and maintaining LGBT and marriage equality.
In Whole Woman’s Health, over a hundred women lawyers who have had abortions filed their own “coming out” brief, telling the Justices their stories as to how the freedom to decide for themselves what happens to their bodies was vital to their lives and well being. Among those women are prominent women in the LGBT rights movement, such as Susan Sommer, Director of Constitutional Litigation for Lambda Legal, and Judy Appel, Executive Director of Our Family Coalition.
One woman who filed the brief explained: “I am the daughter of a teenage mother who is the daughter of a teenage mother. I had an abortion when I was 16 years old and living in rural Oregon. I believe that access to a safe, legal abortion broke the familial cycle of teenage parenthood and allowed me to not only escape a very unhealthy, emotional[ly] abusive teenage relationship but to…work for one of the nation’s most storied civil rights organizations” and become a lawyer. “I often tell people…that access to a safe, legal abortion saved my life.”
The Supreme Court will likely issue its decision in Whole Woman’s Health the last week of June, on or near the first year anniversary of last year’s landmark marriage equality decision. The success of the two movements will remain vital to the lives of all women and LGBT people.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the nationwide grassroots organization Marriage Equality USA contributed to making same-sex marriage legal nationwide in 2015.
Recent Comments