SCOTUS is Enabling a Backlash Against Free Sexual ExpressionRoundup
tags: abortion, Supreme Court, LGBTQ history, reproductive rights, history of sexuality
Rebecca L. Davis, a professor of history at the University of Delaware, is the author of Public Confessions: The Religious Conversions That Changed American Politics and is writing a history of sexuality in the U.S.
The leaked Supreme Court opinion by Justice Samuel A. Alito Jr., which would overturn Roe vs. Wade, marks a devastating setback for reproductive justice in the United States. It also highlights how bound up the right to abortion is with other fundamental sexual freedoms and civil rights. Whatever happens in the wake of this likely decision, we are already witnessing the undoing of more than a century of successful efforts to expand and protect individual rights to sexual and gender self-expression.
A decision nullifying Roe could threaten protections for other sexual rights. The majority opinion in Roe in 1973 relied on a right to privacy first established in Griswold vs. Connecticut (1965), which lifted a state ban on contraceptive access for married people. Recognition of a right to privacy also underpinned the court’s decision in Lawrence vs. Texas (2003) to overturn state anti-sodomy statutes. The majority opinion in Obergefell vs. Hodges (2015) likewise cited a right to privacy among its reasons for requiring all states to legalize marriages for same-sex couples. All those cases marked wins for individual liberty, human rights and civil rights.
Whether or not federal protection for abortion rights disappears this year, the erosion of sexual freedoms is already well underway. Although a majority of Americans support abortion rights, several states have passed extraordinarily restrictive abortion laws. School boards have banned books with LGBTQ content. And state legislatures have authorized retaliation against transgender people and their allies — even investigating the parents of children who receive trans-affirming healthcare.
It is not a historical accident that a likely Supreme Court decision to overturn Roe has coincided with these other assaults on sexual freedom and gender identity. The legal right to abortion is but one issue — if a critical one — at the heart of a much larger struggle for sexual autonomy.
That struggle took shape in the wake of another devastating attack: the passage of the Comstock Act in 1873, championed by Anthony Comstock of the New York Society for the Suppression of Vice. Officially the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, the law prohibited sending “obscene, lewd, or lascivious” items through the U.S. mail or across state lines. The act defined reproductive technologies and all printed material about contraception as obscene.
Many states had started to outlaw abortion procedures in the 1850s, often due to pressure from (male) physicians determined to undermine a measure typically provided by (female) midwives. The Comstock Act made even the possession of abortifacients a federal crime.
Prudish, sanctimonious and often cruel, Comstock was a “fire and brimstone” Protestant who considered any sex outside of marital reproduction to be sinful. He succeeded in convincing the federal government to impose his religious values on all Americans.
But Comstock’s law did not affirm the status quo. It sought to thwart increasingly permissive sexual values.