For my comments on Panel One, Reproductive Justice: Expanding the Vision to “Collateral” Fields, I would like to “expand” by focusing more specifically on the interrelationships of lesbians and abortions.

 

Lesbians are by definition “reproductive outsiders,” as Jenni Millbank has rightly theorized.  This outsiderness, in theory and in practice, is most obvious in several categories:  as the protection of legal parenthood status from challenges by non-lesbians, including the state in its child protective powers;  as the conflict between lesbians who have legal parenthood status and lesbians who do not have legal parenthood status (often, although not always, following biological status); and as the legal ability to access “reproductive technology,” including very basic and rather non-technological technology such as insemination.

 

Thus there is an important argument to be made that lesbians and other sexual minorities do not inhabit a “collateral” field to be integrated into the house of reproductive rights.  Additionally, it is also true that reproductive rights have an essential place in the LGBT legal reform movements.   The symbiotic relationship between reproductive rights and sexual rights is not unproblematic, but it is an experience that is lived, litigated, and theorized.   The experience occurs across various societies and states, with diverse economic, racial, ethnic, and disability hierarchies.  

           

Here I’d like to highlight the specific relationship between lesbians and abortion. This relationship does not seem symbiotic or even obvious to most people, except at the broadest conceptualization of reproductive and sexual rights as part of a liberatory politics.  While “liberation” is an exceedingly troublesome word, I hope we will explore “liberty” in the context of lesbians and abortion, including litigation strategies.  Privacy and (substantive) due process as the constitutional grounding for Roe, Casey, and Lawrence have been devastatingly critiqued, by both progressives and conservatives; McDonald v. City of  Chicago (the incorporation of the Second Amendment case presently before the Court) may necessitate doctrinal reconceptualizations.   Equality doctrine and rhetoric are attractive, but the normalizing and deradicalizing in the same-sex marriage equality arguments are vexing.

 

I would like to suggest three areas for discussing lesbians and abortion.

 

First, the increasing emphasis on “personhood” for fetuses admits of no exceptions for rape.  This must concern every lesbian. In same-sex marriage litigation and opinions (including Perry v. Schwarzenegger, the same-sex marriage trial presently being litigated in the Northern District of California and Hernandez v. Robles, the New York Court of Appeals opinion) there are conclusory statements that LGBT persons cannot reproduce without specific intent.  The rape of lesbians by men contradicts that conclusion. Accurate statistics about the rape of lesbians by men are difficult to unearth; individual situations are not.   The so-called “corrective rape” of lesbians by men in South Africa is not phenomenon unique to South Africa.   There are news reports of rape as part of hate crimes against lesbians and reported cases discussing evidence of a rape victim’s lesbianism as relevant to the issue of consent.

 

Second, lesbians do have sex with men.  This is true whether or not we would all agree in every instance whether such sex is “consensual” and whether or not we would all agree in every instance whether such women are “lesbians.”   Yet when lesbians do have sex with men they are less likely to use birth control methods relied upon by women who have regular sex with men.   Young queer women, especially if they are homeless, are statistically more likely to become pregnant than their heterosexual counterparts.

 

Third, and least concretely, lesbians and women who have abortions are both anathemas.  And they are anathemas for the same reason.  Lesbians and women who have abortions share the mantle of women-who-would-be-independent-from-men: they have their rhetorical culmination in the lesbian as “man-hater” and the selfish “mother” aborting “male fetuses.” Such rhetoric contributes to sexual rights advocates and reproductive rights advocates distancing ourselves from the most radical implications of our theorizing.  In such theorizing, lesbians have a stake in the reproductive rights of all women.   Uncomfortably, some of this theorizing springs from a notion that “any woman can” be a lesbian, and the even more uncomfortable idea that “every woman should” be a lesbian.    Moreover, theoretical defenses of the “selfish” abortion and the sex-selective abortion, raise the specter of lesbianism.   Women chose themselves (as women) or chose (presumably) to bear and mother only other females.

 

Such rhetoric also contributes to sexual rights advocates and reproductive rights advocates distancing ourselves from each other.  In the early 1980s, I witnessed reproductive rights organizations attempts to heterosexualize ourselves.   In the early 1990s, I wrote of lesbian attempts to domesticate ourselves by becoming mothers and marriage-like couples in our lives and in our legal reforms movements.  In the 2000s, we have seen “gay rights” become more palatable in some legal arenas than abortion rights.   Starting in 2010, perhaps there will be a more united front that embraces the full liberatory potential of our movement(s).

 

 

Ruthann Robson

Professor of Law

CUNY School of Law

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