Lambda Legal’s case against Texas abortion regulations is not about the law

Court-mandated abortion on demand was bad enough as baseless law, but in recent years its supporters seem to have taken constitutional scholar John Hart Ely’s assessment that Roe v. Wade “gives almost no sense of an obligation to try to be” constitutional law — not as a critique, but as permission to ignore the law completely.

Lambda Legal, a gay advocacy group, has submitted one of the amicus briefs in Whole Woman’s Health v. Hellerstedt, on behalf of the abortion facilities Texas wants to regulate. At the Advocate, Lambda’s Camilla Taylor, Caroline Sacerdote, and Kara Ingelhart offer a case for why the Supreme Court should side with the abortion industry—a case that stands out for how little it even pretends to be legal analysis.

[L]andmark court victories for LGBT people share a common doctrinal foundation with precedents protecting the constitutional right to abortion; erosion of the right to terminate a pregnancy puts LGBT civil rights at risk.

How? Presumably the right to privacy is the “common doctrinal foundation” the authors have in mind, but whatever the constitutional status of the causes grouped under the “LGBT rights” label may be, it’s preposterous to suggest that allowing abortion to be regulated or even prohibited would jeopardize gay Americans’ freedoms in any way.


First, even if we grant for the sake of argument that the Constitution contains a broad, generalized “right to privacy” (which it doesn’t), abortion would still be an illegitimate application of it, because one’s individual privacy can’t cover harming another individual. Second, the current case before SCOTUS isn’t even about the “right” to abortion; it’s about imposing safety regulations on providers of it. The Court has already ruled that the two aren’t mutually exclusive, which should be common sense, considering that nobody disputes states’ right to regulate all sorts of actual medical procedures that we have undisputed rights to seek.

People who have an abortion — whether members of the LGBT community or not — experience something familiar to all LGBT people: stigma. Although abortion is one of the most safe and common surgical procedures in the United States, two in three women who have had abortions anticipate being stigmatized if others find out. This concern of being “outed” as having had an abortion keeps 58 percent of those who have had abortions from sharing their stories with their families and friends. This silence perpetuates abortion stigma and interferes with the ability of those who have accessed abortion to advocate for themselves in the political arena.

Ah, yes, the famed Stigma Clause of the Constitution, which our forefathers wrote to ensure—wait, no, that’s not in the Constitution at all. That has absolutely nothing to do with the objective criteria and absolute impartiality by which a law’s permissibility is supposed to be determined. If a law arguably shames something or someone, we have two other branches of government, plus these things called “elections,” for deciding whether that’s a good or bad thing.

Aside from how spectacularly off-topic the authors’ “legal” analysis is, there are more than a few gay folks who would see the real insult here as putting their consensual relationship decisions in the same category as slaughtering an innocent child…

Much of the stigma around abortion arises because the act of terminating a pregnancy is seen as deeply transgressing gender norms. Abortion challenges traditional stereotypes of women as mothers and self-sacrificing nurturers.

“Gender norms”? Seriously? Is there a “gender norm” in this country of men killing their children for convenience with societal approval? Anywhere? Because that would be the only circumstance in which it would be the slightest bit sane to suggest protecting babies is about enforcing any sort of stereotype about women.

Only the first of these points even alludes to a legal argument—and it’s a bogus one. The authors don’t even try to mask the rest as anything other than purely ideological or cultural claims. Remind me again why “Legal” is in Lambda’s name?

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