Losing the Negative Right of Privacy: Building Sexual and Reproductive Freedom


Recognition by the Supreme Court in Roe v. Wade that women have a qualified right to abortion has fueled a controversy that remains dangerously unresolved. At the center is the question of whether women are entitled toself-determination, for to be denied control over reproduction and sexuality is to be denied full personhood and reduced to dependence. The explosive antagonism to Roe attests to the deeply radical nature of the demand, advanced first by feminists and then by lesbians and gay men, for a power which is fundamental in our traditional, liberal, constitutional scheme: the control over one’s body and the direction of one’s life.

As Justice Blackmun warned in Webster v. Reproductive Health Services, the new majority on the Supreme Court is chillingly hostile to ceding this power. Its denial has been a cornerstone of patriarchal power, whether expressed in the enslavement of African-American people, the reproductive servitude of women, or the denial to gay men and lesbians of the right to love. This Article provides a brief history of the Court’s attacks on the powers recognized in Roe and examines that hostility as evidenced in the Court’s recent decisions, culminating in Bowers v. Hardwick, upholding the criminalization of lesbian and gay sex, and in Webster, undermining the right to abortion. The success of the Reagan and Bush Administrations in transforming the Court into an oracle of their right-wing agenda demands the rebuilding of both the political and theoretical bases for the protection of these fundamental rights. To do so, it is necessary to examine the deficiencies in, as well as the benefits of, the liberal concept of privacy. This Article will, therefore, explore the negative character of the privacy right as it has been espoused both politically and constitutionally, and at the same time suggest the potential of viewing privacy as a positive right, rooted in the concept of equality.

My hope for the next phase of the movement for procreative and sexual rights is that we not limit ourselves simply to winning back what we have lost, but rather set our sights on winning what we need: recognition of an affirmative right of self-determination. This will require acknowledging the inextricable interrelationship between reproductive and sexual decision making and the broader demand for equality. This will also require recognizing that it is society’s responsibility both to protect choice and to provide the material and social conditions that render choice a meaningful right rather than a mere privilege. In a world riddled with racism, sexism, homophobia, poverty, and exploitation, choice cannot be free.

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