What the forthcoming U.S. Supreme Court decision on abortion means for gay sex and same-sex marriage—it ain’t good: Opinion by Professor Brenda Cossman

In an Opinion for Xtra magazine published May 30, Faculty of Law Professor Brenda Cossman writes that by questioning Americans’ right to privacy, the U.S. Supreme Court proves it’s capable of undoing the last two decades of LGBTQ2S+ progress:

It comes as no surprise that the United States Supreme Court is poised to overturn Roe v. Wade, the landmark 1973 decision that provided a constitutional right to abortion. Successive conservative presidents have stacked the court for just this purpose, and the court has chipped away at it for decades. But it is still shocking. If Justice Samuel Alito’s leaked opinion becomes law, it will mean that almost overnight, millions of women and trans people will no longer be able to access safe, legal abortions. As if that is not horrendous enough, the damage will not stop there. The entire house of cards that has been built on Roe may also soon come tumbling down. And that house contains many of the laws and rights concerning sexual orientation and gender identity.

Few legal decisions have been subject to as much critique from their inception as Roe. It single-handedly mobilized the anti-choice movement, which, for decades, has rallied against the decision with laser focus. Even many who supported the right to choose criticized the basis on which the right was granted: privacy. In Roe, the court held that the Due Process Clause of the 14th Amendment of the U.S. Constitution included a “right to privacy” that protects a pregnant person’s right to choose whether to have an abortion. That’s the amendment that guarantees that no person shall be “deprived of life, liberty or property without due process of law.”

True, privacy is not mentioned in the 14th Amendment; it is not mentioned in the Constitution at all. Yet Roe didn’t invent the right to privacy. The Supreme Court first recognized it in earlier cases dealing with access to birth control by married couples (in 1965), and then birth-control access for unmarried people (in 1972). This privacy right was said to exist in the nebulous space of the “penumbras” of the rights guaranteed by the constitution—rights that are implied, if not stated. It was this right to privacy that was extended in Roe to include the right to choose an abortion. 

Professor Cossman is the author of The New Sex Wars: Sexual Harm in the #MeToo Era (NYU Press 2021).

Read their Opinion article at Xtra magazine