The Republican Party has no shortage of unpopular policy preferences, running the gamut from defunding libraries to bringing back child labor. But one of the least relatable, most bewildering items on its agenda may be its broad opposition to sex.
Later this month, the Supreme Court will hear oral argument in FDA v. Alliance for Hippocratic Medicine, yet another lawsuit manufactured by the Christian-right litigation organization Alliance Defending Freedom. Despite the name, the ADF dedicates much of its time to rolling back reproductive freedom: This particular case is about cutting off access to a pill called mifepristone, which the FDA approved for abortion medication and miscarriage management over twenty years ago. Since its approval, more than five million Americans have safely taken the medication. And today, mifepristone is used in more than half of all abortions nationwide.
(Photo by Probal Rashid/LightRocket via Getty Images)
Since the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization in 2022, conservatives are more emboldened than ever to use the law to curtail bodily autonomy. People who get abortions almost universally attest that it was the right decision for them. Yet in his opinion siding with ADF in the mifepristone case, Texas district court judge Matt Kacsmaryk claimed that the FDA had improperly ignored “the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.” Reversing the approval of mifepristone would force people to carry a pregnancy to term and give birth—even if they are unwilling or unable to safely do so—and expose them to legal jeopardy, since Republican lawmakers are increasingly criminalizing pregnant people for actions deemed harmful to their pregnancies. Any attack on abortion needlessly creates a risk of grave consequences for the simple act of having sex.
While conservatives are trying to make it impossible to end a pregnancy, they’re also making it harder to avoid pregnancy in the first place. In February, nearly 150 Republican lawmakers filed an amicus brief in the mifepristone case urging the Supreme Court to end medication abortion by reinvigorating the Comstock Act—a 19th-century law that would prevent anything “obscene” from being shipped through the mail. Its history would allow Republican lawmakers and conservative justices to apply it to a lot more than dirty magazines; in fact, the law explicitly applied to birth control until the Supreme Court decriminalized contraception in Griswold v. Connecticut. In his concurrence in Dobbs, Clarence Thomas opined that the Court should overturn Griswold, too, which makes the path pretty clear: Slap the “obscene” label on contraception and abortion, and you effectively kneecap reproductive healthcare nationwide.
Republicans’ war on sex is only growing more ambitious. A video clip posted last year by The Heritage Foundation, one of the key brain trusts of the conservative legal movement, began to recirculate widely last week on the website formerly known as Twitter. In the clip, anti-feminist British writer Mary Harrington advocates against birth control pills in support of “returning” the “danger” and “consequentiality” of sex. The Heritage Foundation added a caption to the clip that helpfully made its actual concern clear: “Conservatives have to lead the way in restoring sex to its true purpose, & ending recreational sex & senseless use of birth control pills,” it wrote.
“It seems to me that a good place to start would be a feminist movement against the pill, & for… returning the consequentiality to sex.”
Conservatives have to lead the way in restoring sex to its true purpose, & ending recreational sex & senseless use of birth control pills. pic.twitter.com/yq5uxJN0WJ
— Heritage Foundation (@Heritage) May 27, 2023
Sex already has plenty of consequences, to be clear: It can produce satisfaction, companionship, joy, and yes, sometimes, children. The right’s position is that only the last one matters: One man and one woman should produce children (ideally white Christian children) who will then be raised by the mother in the home. And the point of law is to compel conformity with this narrow vision.
The problem conservatives have with sex is not that sex lacks consequences. It is that people are choosing the consequences that are right for them. Wanting sex to be “dangerous”—in a bad, reproductive coercion way; not a fun, BDSM way—is to treat pregnancy and children as an appropriate punishment for the offense of having any sex at all.
A war on sex is undoubtedly unpopular—Republicans might as well declare war on puppies or ice cream. But the conservative legal movement has never cared about the will of democratic majorities. And since it captured the courts, it doesn’t have to.
