The Racial and Reproductive Justice of Thurgood Marshall

Thurgood Marshall, 1967. Photo: National Archives and Records Administration

On January 21, 2017, the day after the inauguration of Donald Trump as America’s 45th president, almost half a million people descended on Washington, D.C., in what the Washington Post called “likely the largest single-day demonstration in recorded U.S. history.” The Women’s March was held to protest the election of a highly unpopular president, who had been exposed in the months leading up to the election as someone who insulted the appearance and intelligence of women, boasted of his aggressive sexual advances toward others, and vowed to nominate a Supreme Court judge who would roll back women’s access to abortion. In D.C., and at solidarity marches around the nation and the world, people arrived for a massive show of support for women’s rights and reproductive justice.


Thurgood Marshall was a “great champion of intersecting struggles against racism and sexism.”


Actor Chadwick Boseman, who was on the set of Marvel Studios’ Black Panther, a movie based on the first black superhero featured in mainstream comics, took a break from filming that morning to tweet, “Shooting Black Panther on a Saturday. But my heart is at the Women’s March.” It was a fitting sentiment for an actor who had also been cast to star in Marshall, the recently released biopic about the late Supreme Court Justice Thurgood Marshall.

While Marshall was known foremost for his role in important civil rights cases like Brown v. Board of Education, as well as for becoming the first black U.S. Supreme Court justice some 50 years ago this month, he was also an influential figure in the history of reproductive justice. While the biopic focuses on his early career, when he handled a 1941 case involving a black defendant facing racially charged allegations and a prejudiced criminal justice system, it was not until more than three decades after that case — and more than five years after his swearing in to the Supreme Court — that Marshall became a fixture in the history of abortion rights in the U.S. Continue reading

Roe v. Wade: Repercussions on the Movement for Reproductive Rights

Many would be surprised to learn that a reproductive-rights champion like Ruth Bader Ginsburg would criticize the Roe v. Wade decision.

Even an abortion rights champion like Ruth Bader Ginsburg has criticisms of the Roe v. Wade decision.

On January 22, 1973 — 42 years ago today — the Supreme Court decided Roe v. Wade, wherein a Texas woman sought an abortion, but existing legislation in Texas prevented her from doing so. The Supreme Court ruled 7 to 2 that it was unconstitutional for states to interfere in the process of a physician providing a first-trimester abortion. Before the ruling, it was illegal for physicians to perform an abortion in 30 states. In the remaining 20 states, it was illegal for physicians to perform abortion unless it was deemed medically necessary.

Women, their autonomy, and their right to decide their future were not given as reasons why Roe v. Wade was decided the way that it was. Justice Harry Blackmun wrote for the Supreme Court, stating that the case was a right to privacy issue that was protected under the Due Process Clause of the 14th Amendment. Before his death in 1999, Justice Blackmun stated outright that Roe v. Wade was not about women’s rights. Ronald Rotunda, law professor at Chapman University, recalls a 1994 conversation with Justice Blackmun where he explicitly spelled out the ruling’s intentions: “Roe ‘protected the woman’s right, with the physician, to get an abortion.’” Rotunda made clear that “Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.”


Some reproductive rights supporters think Roe v. Wade faltered in not explicitly prioritizing women’s rights to control their own bodies.


Each January, reproductive justice advocates celebrate the Roe v. Wade decision because it is absolutely essential that a woman is able to obtain an abortion if that is what she decides — because she, and she alone, should decide her future and fate. However, as interpreted by the Supreme Court, Roe v. Wade was never about women’s rights. Numerous legal scholars in favor of reproductive rights have taken issue with how Roe v. Wade was handled. Their criticisms are largely that: (1) the Supreme Court went beyond its role of judicial power and into that of legislative power by making abortion legal in all 50 states, and (2) the Supreme Court failed to make the decision about a woman’s right to choose her own future. Below is only a brief cross-section of these criticisms. Continue reading

Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas.

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.


June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.


On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed? Continue reading