The Sexual Freedom Cases? Contraception, Abortion, Abstinence, and the Constitution
92 Pages Posted: 13 Feb 2000
Many constitutional scholars--including Richard Mohr, Richard Posner, Laurence Tribe, and Robin West--have taken a series of Supreme Court decisions in the 1960s and 1970s invalidating anti-contraception and anti-abortion laws to reflect judicial recognition of a constitutional right to engage in sexual activity for nonprocreative purposes. Protection of sexual activity is said to be a logical entailment of these "sexual freedom cases" because the anti-contraception and anti-abortion laws are treated as not interfering significantly with reproductive control, since people retained the option of abstaining from potentially reproductive sexual acts. This Article assesses this interpretation of the "sexual freedom cases" by considering a number of competing interpretations that have been offered. Although many of these accounts do not provide a persuasive alternative to the right-to-sex interpretation, approaches sounding in gender equality, bodily integrity, or procreative autonomy are capable of providing sufficiently plausible alternative accounts that the right-to-sex interpretation should not be viewed as logically dictated. To do so, however, these alternative interpretations need some method of bridging the gap in their logic exploited by the argument from abstinence. This Article offers ways of bridging that gap that rely on a constitutional constraint on the means by which government may pursue its ends, ruling out efforts that threaten physical harm or the creation of new persons. Thus supplemented, however, these alternative approaches treat the Supreme Court's contraception decisions and abortion decisions as grounded in different principles, thus disrupting the conceptual unity which the Court itself has treated the sexual freedom cases as possessing.
Note: This abstract appeared in a previous issue of Constitutional Law with the incorrect paper request information. This is the corrected version.
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