This State Could Police Your Sex Positions If Roe v. Wade Is Overturned

“Our sodomy statute basically prohibits everything but missionary sex,” Michigan Attorney General Dana Nessel tells Jezebel.

This State Could Police Your Sex Positions If Roe v. Wade Is Overturned
Photo:Photo by Artur Widak/NurPhoto via Getty Images (Getty Images)

Several misguided Michigan Republicans have made headlines recently—and not for anything good. There’s the state house candidate who said he tells his daughters that “if rape is inevitable, you should just lie back and enjoy it,” and the gubernatorial hopeful who said abortion shouldn’t be allowed in cases of rape because the fetus “may be the next president.”

Not to be outdone, all three Republican candidates vying to become Attorney General said last month that they oppose the Supreme Court ruling which allowed married couples to use birth control and said that issue should be left to the states. The right to privacy established in that case, 1965’s Griswold v. Connecticut, underpins the 1973 ruling Roe v. Wade—and you may have heard that the historic abortion case is on its last legs.

If the Supreme Court overturns Roe and sends abortion back to the states, it’s not just legal abortion and birth control that could go out the window, but also decisions legalizing marriage equality and sex between same-sex partners. And it gets worse: Current Michigan Attorney General, Democrat Dana Nessel, said her state still has an expansive sodomy law on the books that a conservative AG could weaponize against heterosexual couples.

“It’s a 15-year felony not just to have same-sex intimate relationships, [but] our sodomy statute basically prohibits everything but missionary sex,” Nessel, a former sexual assault prosecutor, told Jezebel. “So oral sex and anal sex, to have those types of sexual acts with your legally consenting spouse, you could theoretically go to prison for up to 15 years—it’s the same [penalty] as sex by force,” said Nessel, who is Michigan’s first openly gay person elected to statewide office. The state also has an anti-adultery law still on the books.

If Roe were overturned, Michigan’s 1931 criminal abortion ban would go back into effect; it makes abortion a felony carrying a four-year sentence, she said. (Advocates are currently collecting signatures so voters could protect abortion in the state constitution in November.) “Same-sex marriages are banned not just by statute in Michigan, but also by our Constitution as of 2004,” she said. The 2015 Supreme Court decision Obergefell v. Hodges legalized marriage equality in the state.

Michigan Attorney General Dana Nessel Photo:AP Photo/David Eggert (AP)

Nessel is up for re-election in November, when sexual privacy rights could already be a thing of the past. She said that, given what’s at stake, it’s shocking to hear potential elected officials talk so cavalierly about bodily autonomy, spouting what she called “neanderthal, archaic attitudes.”

Talk of Griswold being wrongly decided is a red flag, because the case is like a block near the base of a Jenga tower, Nessel said. The tower started with the birth control for married couples block, then on top the court added interracial marriage, birth control for unmarried people, abortion, then same-sex relationships, and marriage equality.

“When you take out Roe, when you take out Griswold, everything just collapses. Everything is built on a premise of this right of privacy that was created as a constitutional precept, really, under Griswold,” she said. “So as Griswold goes, so do all of those other cases.”

Nessel would rather focus on prosecuting rapists than investigating the sex lives and reproductive choices of consenting adults, but she can’t say the same for her opponents.

“This is why I’ve been sort of screaming and hollering and jumping up and down trying to get people to understand what it means” that Roe is on the chopping block, she said. “It used to be [that] Republicans could kind of say whatever they wanted because they knew the US Supreme Court was never going to do anything. They could be as opposed to abortion as they wanted to be—or birth control or same-sex marriage or whatever it was—but it didn’t really matter.”

But now that there’s a 6-3 conservative supermajority on the court, state lawmaker’s stances are consequential. “If nothing is protected by the United States Constitution, and everything is a state’s right,” Nessel said, “it’s going to matter a whole hell of a lot who your Attorney General is because of how these laws are gonna be enforced, and then more so than that, who your state legislators and who your governor are, because we’ve got to repeal these laws.”

Nessel noted that conservatives—including the Republicans angling for her job—often frame abortion and birth control precedents as examples of judicial overreach when they should be rights determined by states. It’s a framing that sounds nice to the average person on the surface, but obscures the truth at hand.

“To them, it’s like, ‘yeah, I want my state to have rights.’ But what it means is that someone is voting on your rights—that you don’t automatically have those rights as an American by virtue of the fact that you live in a nation that values your right to privacy and believes that government has no place in your bedroom,” Nessel said. “People ought to be very concerned about that.”

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