What Lawrence v. Texas says about the history and future of reproductive rights.

On the final day of its term this June, the U.S. Supreme Court handed down its long-awaited decision in Lawrence v. Texas, a case challenging a Texas law criminalizing consensual sex between gay adults. (1) Writing for the Court, Justice Anthony M. Kennedy invalidated the law on the grounds that the Constitution's guarantee of "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and that this liberty extends to gays and lesbians. (2) For reproductive rights advocates, Lawrence is notable because it is grounded in cases dating back to the 1960s that protect the right to use contraception and the right to choose to have an abortion. (3) As a result, it implicitly reaffirms a line of cases--at the heart of which is Roe v. Wade--that has been consistently called into question. (4) However, in reaching its decision, the Court explicitly overturned an earlier decision allowing states to criminalize gay sex, (5) and its discussion about when judges should adhere to or abandon legal precedent could be used by reproductive rights opponents to argue for a reversal of Roe. (6) Finally, with the future composition of the Court in question, the case is noteworthy for what it says--or does not say--about what key Justices may think about personal autonomy, the interest that lies at the heart of reproductive rights. I. RIGHT TO PERSONAL AUTONOMY The Court's decision to strike down a state law criminalizing gay sex between consenting adults is a virtual primer on almost all the major reproductive rights cases of the past four decades. (7) As the Court notes, "the most pertinent beginning point [for our discussion in Lawrence] is our decision in Griswold v. Connecticut," (8) a 1965 case striking down a state law prohibiting the use of contraceptives by married couples. (9) Finding the law unconstitutional, the Court in Griswold held that although the law did not directly implicate any right explicitly spelled out in the Constitution, various "penumbras, formed by emanations" from specific guarantees in the Bill of Rights create "zones of privacy" into which the government cannot intrude. (10) In Griswold, the Court was referring to a right of privacy surrounding the marital relationship. (11) As the Court in Lawrence notes, this right was extended to unmarried people several years later in Eisenstadt v. Baird. (12) This 1972 case involved a challenge to a Massachusetts law prohibiting the distribution of contraceptives to unmarried people. (13) While the Court decided the case on equal protection grounds, (14) Eisenstadt further explicates the right to privacy: [T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (15) These cases, as Lawrence explains, (16) formed the basis for the 1973 landmark decision, Roe v. Wade, which struck down state laws prohibiting abortion and upheld a woman's constitutional right to choose an abortion. (17) Roe grounded the right to privacy in the protection of personal liberty guaranteed by the Due Process Clause of the Fourteenth Amendment, and it recognized a notion of liberty that includes a woman's right to make "fundamental decisions affecting her destiny," such as whether or not to terminate a pregnancy. (18) In its 1977 case, Carey v. Population Services International, the Court subsequently struck down a law prohibiting the sale of non-prescription contraceptives to minors younger than sixteen. (19) In Carey, as in Eisenstadt, the Court held that the privacy right found in Griswold was not limited to married adults. …