First Published in Conscience on April 30th, 2004
In 2003, the Supreme Court issued the most significant decision on the right to privacy since Roe v. Wade. As the Court’s term was winding down, there was substantial concern that a justice would resign and an antichoice replacement would be nominated. Instead, the justices stayed put and delivered a ringing victory for the right of individuals to make personal decisions about their sexuality. In the case, Lawrence v. Texas, the Court struck down Texas’ sodomy law, overruled a 1986 decision, and declared that the men who challenged the law were “entitled to respect for their private lives.”The opinion is remarkable, not just for its outcome, but for its soaring language about what it means to be human, to have “an autonomy of self” to form one’s beliefs and to chart one’s destiny. It is a valentine to liberty, built on Roe and its progeny. Justice Kennedy writes that Roe recognized a woman’s right “to make certain fundamental decisions affecting her destiny.” He quotes Planned Parenthood v. Casey for its statement: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In the decision, the Court recommits itself to Roe as constitutional doctrine and human necessity.This is very good news. The development of constitutional doctrine has always been, and will always be, a critical component in the struggle to protect reproductive rights. Not the only component to be sure — we need engaged citizens and committed officeholders — but a critical component. Last year alone, we had court decisions that struck down parental notification laws, abortion bans, restrictions on public funding for abortion and burdensome regulations on abortion providers.We need to embrace these successes and counter our opponents’ attacks on the courts. Antichoice advocates cast themselves as democracy’s champions who work through legislatures, while labeling us “undemocratic” for securing judicial protection of constitutional rights. The premise, of course, is flawed in fact and theory. Prochoice advocates are heavily engaged in electoral politics and lobbying, achieving recent legislative victories on issues ranging from clinic protection to equal access to contraceptive coverage in prescription drug plans. On the flip side, antichoice groups turn to the courts to challenge these very victories.Court-bashing misunderstands the genius of our American political system in creating a free and fair society. It is not majority rule, which can be used for good or ill. It is that we are a constitutional democracy. That constitution divides power among three co-equal branches of government and guarantees individual liberty through a Bill of Rights. Without constitutional rights and a strong court system to protect them, our democracy would easily become a tyranny of the majority.Our Constitution lives. Its glorious commitment to human dignity, autonomy, equality and the right to privacy has been reinvigorated. We need to continue to fight for the full realization of that commitment in law and in the hearts and minds of the public.