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5 The Jurisprudence of Personal Sexual Autonomy Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream” [and] that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.­—­Antonin Scalia1 I t was the summer of 1969. Norma McCorvey, a twenty-one-year-old unskilled worker living in Texas, learned that she was pregnant. Single, unable to obtain an abortion in her home state, and unable to afford to travel to a state where she could procure one, she gave birth. Without means to provide for the child, her third, McCorvey sought the services of an adoption agency. In the process, she met two young lawyers who undertook to challenge the constitutionality of the Texas abortion law. Norma McCorvey became Jane Roe.2 The stormy confluence of personal decisions related to the fundamentals of human existence and identity, and the meaning and force of the laws that we as citizens impose on one another, are felt nowhere more keenly than in the jurisprudence of personal sexual autonomy. This chapter focuses on the landscape of abortion law and policy. Because the rights of access to contraception, of private consensual homosexual conduct, and of marriage equality are linked to abortion by intertwined constitutional jurisprudence—­ and resisted to varying degrees by conservatives—­ these issues are presented as context for the abortion narrative. We examine how members of the Federalist Society have promulgated conservative ideology in abortion law and policy. As in other areas of law, Federalist Society members’ contributions include the development of legal theory and strategy, publishing and popularizing their ideas in legal journals and public forums , working in coalitions, holding key government positions, promoting legislation , representing parties in court, and filing amicus briefs on important issues. Symbolic of their influence, members of the Federalist Society have presented the oral argument to the Supreme Court in every significant abortion case since 1992. 141 The chapter first identifies the links between the Federalist Society and the most prominent individuals and groups in the antiabortion and “family values” movements. We explain the influence that Federalist Society members had over government policy toward abortion in the administrations of Ronald Reagan, George H. W. Bush and George W. Bush. After outlining the jurisprudence of intimate personal liberties in Supreme Court cases leading up to Roe v. Wade, we discuss the prescient constitutional analysis regarding abortion and same-sex marriage outlined by young conservative lawyers in the Reagan Justice Department.3 We then analyze how Federalist Society members’ ideas and tactics have shaped abortion law and jurisprudence since Roe, shining a light on the success that conservatives have had chipping away at the right to make abortion decisions. We note that Federalist Society members and other conservatives do not universally share the substantive arguments against a constitutional right to choose an abortion. Of the broad group of viewpoints that make up the conservative spectrum , moral issues present perhaps the greatest ideological and social divide. A libertarian may favor only minimal regulation of abortion, while a social conservative may prefer a complete ban. Studies have shown that the greatest social divides among lawyers of the right are between economic conservatives and abortion opponents , and between libertarians and those devoted to traditional family values.4 The Federalist Society and the Family Values Movement The Federalist Society shares membership—­ and leadership—­ with a swath of politically mobilized Christian advocacy groups within the family values movement. These groups seek to promote traditional Christian values and morality in actions “that reflect God’s design,” such as defending the sanctity of life and defining marriage as between one woman and one man.5 These groups are active in policy, politics , and the law, seeking to propagate their vision of the Constitution as a protector of God’s will. The major players in the abortion arena over the last twenty years include Focus on the Family, the Christian Coalition, Americans United for Life, the Legal...


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MARC Record
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