Lesbians and Abortion


In the pursuit of sexual justice for women, protections for lesbians and abortions are nonnegotiable. Feminist conceptualizations of sexual justice have foregrounded both lesbianism and access to abortion. Nevertheless, the arguments for these fundamental elements of what was once termed women’s “liberation” have been articulated relatively independently of one another. For lesbians, reproductive rights are generally articulated as rights to achieve pregnancy and rights to legal parenthood and custody of children. The reproductive right of access to abortion, in contrast, is generally construed as the right of heterosexually active women to terminate unwanted pregnancies.However, lesbians do have a specific stake in access to abortion.Additionally, both “lesbians” and “abortions” implicate fundamental rights integral to feminism, feminist legal theory, and democracy. The right of any woman, for any reason, to be a lesbian or to have an abortion – or both – is a prerequisite for the necessary redistribution of power. Thus, it is not sufficient that being a lesbian or having an abortion be merely permissible under certain circumstances. As the theorist Slavoj Zizek contends, abortion and other sexual matters are often granted by the state in the “guise of permissions” and merely “masked as rights.”‘ This may make “life easier, which is not nothing,” but it does not “give access to the exercise of a power, at the expense of another power.” For women, lesbianism and abortion as freely available options are not merely about making life easier; they change the distribution of power in favor of women.

Law is one method of seeking redistributions of power. Part II of thisArticle briefly rehearses the doctrinal linkages, distinctions, and relative strength of the rights of lesbians and the right to abortion in American jurisprudence. The next sections discuss specific overlaps between lesbians and abortion as lived realities and as subject to legal regimes. Part III considers the availability of reproductive choice after the choicelessness of rape committed against lesbians. Part IV examines the difficulties lesbians, especially young lesbians, face as what might be called “reproductive amateurs” who can become pregnant. As Minors, they may be legally forced to interact with parents or judges hostile to their sexuality as well as to their desire to terminate pregnancy. As both minors and adults, they may be less likely to discover their pregnancy early, and thus they may be more likely to encounter strict time limits in abortion statutes. Part V considers the construction of lesbians and of women who have abortions as”independent” or as “man-hating” women. It argues that the paternalism of the law and specific statutes that seek to remove certain choices from women express male anxiety about the power of women, including, perhaps paradoxically, sex selection.

Although Zizek writes that the sexual liberation that characterized the1960s in France has transformed into a “tolerant hedonism easily incorporated into our hegemonic ideology”3 this may be less true inAmerican jurisprudence. The doctrinal and theoretical maneuvers, complexities, and reversals of sexuality doctrine in the last forty years cannot be described as tranquil or depoliticized. Instead, the trajectory of sexual liberation has taken numerous judicial and legislative twists, turns, and tumbles.

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