Roe v. Wade and Gay Rights

Courtesy Wake Forest School of Law

Roe v. Wade and Gay Rights

Why it matters!

     22 January, 2013 marks the 40^th Anniversary of the Roe v Wade decision in the USA recognizing a woman’s right to an abortion and an American’s Right to Privacy – a cornerstone of LGBTQ rights in the United States.  Is this anniversary important for the LGBT community?  You bet!

    I would guess that many queer men and women would state that abortion rights matter primarily because we understand how difficult it is to live under the “conservative religious patriarchy” or with our rejection for having failed to live up to often unrealistic, even hypocritical religious expectations, ethics and realities.

      While we do not necessarily understand the complications of hetero-pregnancy, we do understand hurt, suffering, potential rejection, blame, fear and all of the other complex feelings and situational complications surrounding sexuality, difficult personal decisions, and the need to take responsibility for ones’ own life and move beyond the consequences.  While we have opinions, we have traditionally hesitated to express moral judgment.  We tend to be accepting, come what may.

    However, Roe v Wade did more than recognize abortion rights, RvW recognized the individual’s right to privacy and the implied right to private fulfillment regardless of the dominant public morality.  The Economist quotes the court’s decision as follows:  "the penumbras of the Bill of Rights" enshrine "a right of personal privacy, or a guarantee of certain areas or zones of privacy". It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (Full Court Press, 22 Jan 2013).

    Without this right to privacy, there would be no Lawrence v. Texas in 2003.  Lawrence is the monumental court case that legalized sodomy or the right to private fulfillment free from outside interference.  Justice Kennedy wrote for the majority, “"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." 

    In his landmark court decision declaring California’s Prop 8 anti-same-sex marriage amendment unconstitutional, Justice Vaughn R. Walker indirectly references RvW and directly refers to Lawrence and an individual’s right to privacy, “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse (Lawrence) … The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship.”

    Roe v. Wade touches upon more than abortion.  It is about rights, the right to privacy, and the right to be privately fulfilled contrary to the over-reaching public values and opinions of others who are not directly impacted or involved.  In a very important way, Roe v. Wade is the fence about the church yard that protects the rights of the individual by constraining those who would seek to enforce their private religious opinions onto others.

    Truly, we are also impacted by religious arguments against abortion because they are enforced by the same people using the same irrational logic that formerly made sodomy illegal and refuses to recognize same-sex marriage.  As gay men and women, we recognize that we are free to be Pro-Life or Pro-Choice and to pursue those values in our own private lives and religion, but these are not values to be forced on others, especially to their detriment.

Fagger Rangers vs. Muselmen by 2Fik, Montreal, Quebec

Roe v. Wade gave us the right to resist uninvited religious intrusion into our private lives.

    This does not mean that we should support each other blindly.  Our lesbian sisters, for instance, have long supported the gay fight against HIV/AIDS, but have also felt free to vocally chide us for being stupid when we fail to encourage the use of condoms or seem to lead lives of endless, reckless hook-ups.  This is speaking the truth in supportive love.

    I for one actually happen to be conditionally Pro-life.  Often, the same scriptures interpreted as denouncing the gay lifestyle also condemn women to death for experiencing many of the circumstances that tend to lead to abortion, including pre-marital sex, incest, certain circumstances of rape, and so on.  The Bible is somewhat silent on aborption, possibly because many of the women were to be killed – along with any potential feti.  Even a very pregnant Virgin Mary ought justly to have been put to death under the scriptural code – calling such literalist and destructive Biblical interpretations into question.

    Yet, as a queer man, I worry.  If given the ability to detect a LGBTQ gene or tendency in a fetus, would conservative parents seriously consider abortion as the lesser of two evils?  These people have had little compunction in throwing us away as teenagers or youth, or as adults, attacking our human dignity.  Why would they hesitate to choose not to birth such a child in the first place?  

    Roe v. Wade is a landmark court case that goes beyond the right to an abortion.  As gays, our rights to privacy and indirectly, to private fulfillment, such as marriage, rest on this cornerstone ruling.  Regardless of one’s views on abortion, we all need to protect a woman’s right to choose – but not necessarily blindly.

Note:  The American doctrine of the Right to Privacy was actually put forth and substantiated in the 1965 case Griswold v. Connecticut wherein the Supreme Court struck down a law that prohibited the use of contraceptives in favor of a "right to marital privacy."  However, it seems that this right to privacy was upheld and most famously applied in Roe v. Wade.  Significantly, much of anti-privacy religious political effort has focused on Roe v. Wade.

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(c) Agassiz Media and Consulting, 2013.