Jill Lepore, ranked #1 in the United States for building arguments so clear as to require no scaffolding whatsoever, wrote a masterful piece in the New Yorker this week about the Supreme Court cases that have shaped the course of reproductive and marriage freedom in America—one path continually embattled and at best stagnant, the other expanding at a clip.
In the essay, Lepore writes about things that are often conflated when they work quite differently: cultural movements vs. the Constitutional arguments that determine their viability, for example, and the way that difference relates to the fight for women’s rights vs. the fight for LGBT rights. Both movements seem predicated on similar freedoms, and share considerable DNA—“That sex and marriage can be separated from reproduction is fundamental to both movements, and to their legal claims,” she writes—but have often depended, in court, on two separate ideas: the right to privacy in one case, and the right to equality in the other.
There’s a difference between the arguments of political movements and appeals to the Constitution. Good political arguments are expansive: they broaden and deepen the understanding of citizens and of legislators. Bad political arguments are as frothy as soapsuds: they get bigger and bigger, until they pop. But both good and bad constitutional arguments are more like blown-in insulation: they fill every last nook of a very cramped space, and then they harden. Over time, arguments based on a right to privacy have tended to weaken and crack; arguments based on equality have grown only stronger.
Griswold v. Connecticut, the landmark 1965 case that ruled a Connecticut ban on contraception unconstitutional, was determined “not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy,” via a majority opinion that stated: “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
This precedent—reproductive decision-making justified by a questionable insistence on sexual behavior being private—has shaped all reproductive rights cases ever since, despite efforts to the contrary. Sarah Weddington argued, in Roe v. Wade, that a woman’s right to abortion fell under due process, the Equal Protection clause, the Ninth Amendment, and “a variety of others.” But, in the Court’s decision, Justice Harry Blackmun “located the right to an abortion in a right to privacy, wherever in the Constitution or amendments anyone cared to find it.”
The dubious precedent set by Blackmun’s majority opinion was not lost on Roe’s beneficiaries: Lepore cites Catherine MacKinnon in 1983 calling the right to privacy “an injury got up as a gift,” reinforcing exactly “what the feminist critique of sexuality criticizes: the public/private split.” RBG echoed this a year later:
In 1984, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in the District of Columbia, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the Court’s opinion in Roe wanting for a number of reasons; among them was its failure to pay any attention to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”
And then came along another movement, observing the pitfalls of the inward-facing privacy-based argument, leading with equality first and only, a concept that tends to expand:
In the nineteen-eighties and nineties, while the reproductive-rights movement struggled against efforts to overturn or roll back Roe, the gay-rights movement, fighting AIDS, grew. “Privacy” remained a watchword of the reproductive-rights movement—and abortion became more hidden, and more difficult to procure—but L.G.B.T. activists insisted on the importance and the urgency of visibility, of pride, and of coming out. The legal reasoning employed by these two movements began to split. Privacy arguments, long troubling to feminists, were especially troubling to gay-rights activists.
They were right to be troubled. By now, the privacy argument has backfired on reproductive rights: the Hobby Lobby case was won on the basis of the corporation’s rights to their religious beliefs, for one, and abortion bans and reproductive rights rollbacks come surely and steadily in the United States, a never-ending tide.
Of course, religious liberty arguments are being used against LGBT rights all over the country, but this reasoning is little match for the movement’s strengths. The argument for equality is a public one, leaving moral calculation as an afterthought at most; the argument for privacy inevitably invokes the discrimination it attempts to fight.
There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.
The entire piece is a clear-headed explanation of why the women’s movement, rather than successfully expanding to equal pay, maternity leave and subsidized daycare, continues to contract into the sexualized, identity-based battleground of reproductive rights. The whole thing is tremendous; read it up here at the New Yorker.
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