The Supreme Court’s 5-4 opinion Friday that struck down the landmark Roe v. Wade has advocates concerned about what the reversal of precedent could mean for LGBTQ health and newly won rights for the community.
In Dobbs v. Jackson Women’s Health Organization’s decision – a similar version of which was leaked last month — Majority opinion written by Justice Samuel Alito upheld Mississippi’s law banning abortion after 15 weeks of pregnancy and struck down both Roe and Planned Parenthood v. Casey, effectively removing the constitutional right to abortion.
Judge Clarence Thomas, in a concurring opinionwrote that the court should reconsider all of its “substantive due process precedents,” including Lawrence v. Texas, the 2003 decision establishing the right to same-sex privacy, and Obergefell v. Hodges, which legalized same-sex marriage in 2015. (Both Alito and Thomas have previously expressed a desire to Reverse Obergefell).
Despite the high court’s willingness to strike down the precedent and Thomas’ concurring opinion, LGBTQ advocates cautioned against excessive speculation about the fate of rights like same-sex marriage. Instead, they call for attention to the immediate impact caused by the overturning of the Roe and Casey rulings and the continued attacks on LGBTQ rights at the state level.
“We knew Justices Alito and Thomas would like to end the progress and security Americans have felt about rights we have fought for and won for decades,” Evan Wolfson, founder of freedom to marryhe told NBC News. “We don’t need to speculate on how many more bad things will come. What they have done is treason enough.”
Access to abortion and transgender healthcare
Cathryn Oakley, an attorney with the Human Rights Campaign, the nation’s largest LGBTQ rights group, stressed that the high court’s decision will have a direct impact on lesbian, gay, bisexual, transgender and queer people.
“The LGBTQ community depends on reproductive health care. LGBTQ people seek and receive abortions, seek and receive and use contraception,” she said.
For example, lesbians (22.8%) and bisexual women (27.2%) who have been pregnant are more likely than heterosexual women (15.4%) to have had an abortion, according to HRC analysis of National Survey of Family Growth 2017-2019.
Due to issues including barriers to accessing abortion and mistreatment in healthcare, more than a third of transgender people who have been pregnant considered terminating the pregnancy themselves, and nearly 1 in 10 of them tried, according to A study. report 2019 published in BMJ Sexual & Reproductive Health magazine
“Anytime you minimize a right, the impacts fall more on people who are marginalized in multiple ways,” Oakley said. “Today’s decision will hurt people of color, people who have the lowest incomes. It’s going to be very difficult for those who don’t have the resources to travel and get the medical care they need.”
accessing contraception it could become much more difficult because of the ruling, and access to fertility treatments could also be jeopardized, Oakley said.
“Many LGBTQ people rely on assisted reproduction,” she said. “If the law believes that human life begins at conception, that means those embryos in the petri dish are legally persons. That would make it impossible for IVF to really work,” she said, referring to IVF.
Clinics that provide abortions often provide gender-affirming medical care to trans people, such as puberty blockers and hormones.
“LGBTQ people receive a variety of reproductive health care from clinics that provide abortions, and it is important that those clinics are open and in operating condition,” Oakley said.
Health care for transgender people has also been legally restricted at the state level this year in a legislative session that has seen a Historic number of anti-LGBTQ bills.
State lawmakers have introduced more than 340 anti-LGBTQ bills this year, according to the Human Rights Campaign, which organized a call for reporters on the issue earlier this month. the federation equality it is estimated that at least 35 have passed so far.
Last month, Alabama became the third state, after Arkansas and Tennessee, to pass a law restricting the provision of transgender healthcare and the first to add felony penalties. And earlier this month, the administration of Florida Governor Ron DeSantis moved to restrict transgender care for minors and for trans people of all ages on Medicaid.
Void the precedent and same-sex marriage
Some advocates fear that the court’s willingness to strike down the precedent could indicate that other federally protected minority rights may be in jeopardy, such as same-sex marriage, which became the law of the land with the Obergefell v. Hodges.
Alito’s opinion is cause for concern, according to some LGBTQ advocates and lawmakers. Alito, who dissented in the Obergefell ruling, has since been outspoken about his opposition to the landmark ruling.
In a November 2020 speech to the conservative Federalist Society, lamented that marriage can no longer be said to be a “union between a man and a woman” and that doing so is now considered “intolerance”.
The month before, Alito and Thomas issued a statement expressing his disapproval of Obergefell’s decision when the court refused to hear the case of Kim Davis, a Kentucky secretary who refused to issue marriage licenses to same-sex couples citing their religious beliefs. Thomas called Davis “one of the first victims of this Court’s cavalier treatment of religion.”
In Friday’s opinion, Alito argued that Roe v. Wade should be struck down because the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional amendment, including the one on which Roe’s proponents … now primarily rely: the Due Process Clause of the Fourteenth Amendment.”
In his concurring opinion, Thomas asked the court to overturn trio of watershed civil rights rulings which legalized the right to obtain contraception (Griswold v. Connecticut), the right to same-sex intimacy (Lawrence v. Texas), and the right to same-sex marriage (Obergefell v. Hodges). In future cases, he wrote, “we should reconsider all substantive due process precedents of this Court.” Thomas later called the opinions “demonstrably erroneous” and called on his legal colleagues to “correct the error” laid out in them.
“We are witnessing a reordering of modern constitutional law under this court,” said Jason Pierceson, a professor of political science at the University of Illinois, Springfield. “This is a profound change that will reverberate for decades.”
“We are going to see a movement with organizations like Alliance Defending Freedom that are going to go further,” Pierceson added, referring to a conservative Christian legal advocacy group that has brought dozens of cases to the Supreme Court. “It is a recorded invitation to bring test cases to expand the logic of this decision to other areas of constitutional law that are based on any kind of substantive due process analysis.”
Sarah Kate Ellis, president and CEO of the LGBTQ advocacy group GLAAD, called Thomas’s turnout a “blaring red alert for the LGBTQ community and for all Americans.”
“We will never go back to the dark days of being locked out of hospital rooms, locked out of death certificates, denied spousal benefits, or any of the other humiliations that took place in the years before Obergefell,” Ellis said in a statement. “And we definitely won’t go back to the pre-Lawrence days of being criminalized just because we’re LGBTQ. But that is exactly what Thomas is threatening to do to the country.”
More than two dozen states could ban or restrict abortions Now that the Supreme Court has overturned the Roe and Casey decisions, including 13 states with “trigger laws“which take effect automatically now that the court has ruled.
Currently, 29 states have same-sex marriage bans still on the books whose effects were overturned with the 2015 Obergefell ruling, according to Pierceson. In the unlikely event that the landmark decision is overturned, it would once again be up to states to decide on the legality of same-sex marriage.
Following the leak of Dobbs’ decision last month, some elected officials have begun taking steps to update their state statutes and codify same-sex marriage.
Earlier this month, Democratic Utah State Senator Derek Kitchen moved to introduce a bill that would codify marriage equality in his state.
“There is great unpredictability in the current Supreme Court,” he said in a phone call with reporters on June 7. “We don’t want to cause panic, but we want to take proactive steps to ensure families are protected.”
Kitchen followed the lead of New Jersey Assemblyman Donald Guardian, who introduced similar legislation to update New Jersey state law. In January of this year, Governor Phil Murphy signed the bill into law after receiving bipartisan support in both houses.
“We cannot turn back the clock and give unelected officials the opportunity to deny any American the right to marry the person they love,” Guardian said in a statement sent to reporters. “It is critical that we preserve the significant progress in marriage equality that our country has made, and we cannot rest until everyone’s rights to marry are secured.”
Regarding the future of rights like same-sex marriage, Oakley believes concern, but not alarm, is appropriate.
“Justice Thomas has asserted for some time that he has issues with substantive due process, because he doesn’t like that there are constitutional rights that aren’t specifically enumerated,” he said. “He’s saying the quiet part out loud, but he’s not surprising given that he’s been a target for a long time.”
In addition to due process, Obergefell v. Hodges relies on the equal protection clause of the 14th Amendment to the Constitution.
“The Obergefell case has separate legal reasons behind it that should allow that case to survive,” Oakley added.
Unlike abortion, public opinion has also shifted dramatically in favor of same-sex marriage in the last 25 years. According to a Gallup poll released earlier this month, 71% of Americans support same-sex marriagea record that includes most Republicans.
While the fate of same-sex marriage may not be in immediate jeopardy following Friday’s decision, Oakley said the ruling revealed the politicized nature of the court and potential threats down the road.
“The very legitimacy of the court is in the spotlight,” he said. “We know that if the court was willing to overturn 50 years of precedent with this case, all of our constitutional rights are at stake.”