The leaked initial draft of a Supreme Court majority opinion revealing that the landmark Roe v. Wade has been struck down has advocates worried about what a reversal of precedent could mean for newly won rights for the LGBTQ community.
In the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, posted by Politico early last monthThe high court, in a 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 ruling that there is no constitutional right to abortion.
If the official decision mirrors the leaked draft, LGBTQ advocates worry about the immediate implications on LGBTQ health and whether the court’s willingness to strike down the precedent could extend to the landmark 2015 Supreme Court case Obergefell v. Hodges, which Alito and Judge Clarence Thomas have already dealt with. indicated that they would like to reverse.
However, LGBTQ advocates caution against too much speculation about the fate of same-sex marriage, calling attention instead to the immediate shock caused by the overturning of the Roe and Casey rulings and the continued attacks on rights. LGBTQ statewide.
“The threat to women and reproductive rights is enough,” Evan Wolfson, founder of freedom to marryhe told NBC News. “The threat to the freedom to marry is real, but there are even greater and imminent dangers that we must address, and if we address those dangers, we will protect ourselves against the potential threat to the freedom to marry that may be falling. The way.”
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 upcoming high court decision on abortion 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.
accessing contraception it could become much more difficult because of the ruling, and access to fertility treatments could also be jeopardized, he said.
“Many LGBTQ people rely on assisted reproduction,” Oakley 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.
“People have been working hard to fight a number of anti-trans laws across the South,” said Adam Polaski, director of communications for the Southern Equality Campaign. “There is already an anti-LGBTQ momentum.”
Jason Pierceson, a professor of political science at the University of Illinois Springfield, said there is tremendous polarization in state policy on abortion and LGBTQ rights. “One of the potentially most important things about overthrowing Roe is speeding up that process,” he said.
This session, state lawmakers introduced more than 340 anti-LGBTQ bills, according to the Human Rights Campaign, which held a call for reporters on the issue Tuesday. 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.
“If we extrapolate from that, there is a real threat that states could continue to pass bans like that and essentially make it the kind of country where there are some states where you can access affirmative health care and where you can’t,” Polaski said. .
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 draft 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.”
“It is clear that there are at least a couple of votes in the Supreme Court that would take away the freedom to marry and that have shown that they are willing to take away the rights that Americans now have,” Wolfson said.
In the leaked draft 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.”
While Alito limited his analysis to abortion, Pierceson said he believes the draft language “opens the door for conservative activists to undermine newly established rights, particularly the right to same-sex marriage.”
“[Alito] it was spoken when the Supreme Court creates rights that are not textually in the Constitution”, he said. “Because same-sex marriage is newer, one might speculate that conservative lawyers and activists might argue that Obergefell and Windsor were wrong and need to be corrected.” United States v. Windsor is a 2013 ruling that struck down the Defense of Marriage Act, or DOMA, which prohibited federal recognition of same-sex marriage.
“It’s an opinion that only speaks to conservative political and legal activists,” Pierceson said. “It really is a pretty radical legal document.”
If the Roe and Casey decisions were to be overturned in the manner detailed in the opinion, the so-called “activation laws” would go into effect in 13 states that would ban abortion as soon as precedent is struck down.
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.
In response to the leaked Dobbs decision, some elected officials are taking steps to update their state statutes and codify same-sex marriage.
This week, 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 Tuesday. “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.”
However, Oakley stressed that “a lot of different dominoes would have to fall” for the Obergefell decision to be overturned, adding that she “isn’t concerned about them at the moment.”
For one thing, he points out that the decisions in Roe v. Wade and Obergefell v. Hodges have overlapping but also distinct legal bases.
“Roe v. Wade relies on substantive due process, which means that there is a part of human life that is beyond the government’s right to regulate. There are zones of privacy and freedom that the government has no authority to enter,” Oakley explained. “Having children and when is a very personal decision that the government cannot make for an individual.”
In addition to due process, Obergefell v. Hodges relies on the equal protection clause of the 14th Amendment to the Constitution.
“In the event that Roe v. Wade to be struck down, the Obergefell case has separate legal reasons behind it that should allow that case to survive,” Oakley added.
Unlike abortion, public opinion has shifted dramatically in favor of same-sex marriage in the last 25 years. According to a Gallup poll released earlier this month, 71 percent of Americans support same-sex marriage.a record that includes most Republicans.
“There’s no reason for anyone to worry that marriage equality is going away anytime soon,” Oakley said.
Rather than overturn the Obergefell ruling, a more likely scenario is attempts to weaken the anti-discrimination protections that same-sex couples have on the grounds of religious liberty, according to Jon Davidson, an attorney with the American Union’s LGBTQ and HIV Project. for Civil Liberties, who served as co-counsel in the Obergefell case.
For example, the court agreed to hear the case 303 Creative v. Elenis in the fall. The case concerns Colorado website designer Lori Smith, who wants to start designing wedding websites but doesn’t want to provide that service to same-sex couples. At stake is whether Colorado’s anti-discrimination protections violate the First Amendment.
A final ruling in the Dobbs case is expected before the end of the current Supreme Court session, which ends this month.