The Supreme Court’s 5-4 opinion Friday overturning the landmark Roe v. Wade abortion ruling has advocates worried about what the precedent’s reversal could mean for LGBTQ health and the community’s recently gained rights.
In the Dobbs v. Jackson Women’s Health Organization's ruling — a similar version of which leaked last month — the majority opinion written by Justice Samuel Alito upheld Mississippi’s law banning abortion after 15 weeks of pregnancy and overturned both Roe and Planned Parenthood v. Casey, effectively eliminating the constitutional right to abortion.
Justice Clarence Thomas, in a concurring opinion, wrote the court should reconsider all of its “substantive due process precedents,” including Lawrence v. Texas, the 2003 decision that established the right to same-sex intimacy, 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 overturn precedent and the concurring opinion by Thomas, LGBTQ advocates cautioned against too much speculation about the fate of rights like same-sex marriage. They instead urge attention to the immediate impact caused by a reversal of the Roe and Casey rulings and the ongoing attacks on LGBTQ rights at state levels.
“We knew that Justices Alito and Thomas would like to rip out the progress and security that Americans have felt about the rights we have fought for and won over decades,” Evan Wolfson, the founder of Freedom to Marry, told NBC News. “We don’t need to speculate about how many more bad things will come. What they have done is already betrayal enough.”
Abortion access and transgender health care
Cathryn Oakley, an attorney with the Human Rights Campaign, the country’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 relies on reproductive health care. LGBTQ people seek and receive abortions, they 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’s analysis of the 2017-2019 National Survey for Family Growth.
Due to issues including abortion-access barriers and health care mistreatment, over a third of transgender people who have been pregnant considered terminating the pregnancy themselves, and nearly 1 in 10 of them went through with the attempt, according to a 2019 report published in the journal BMJ Sexual & Reproductive Health
“Anytime you minimize a right, the impacts fall the most on the people who are multiply marginalized,” Oakley said. “Today’s decision will hurt people of color, people who have lower incomes. It’s going to be really hard for those who don’t have the resources to travel to get the health care they need.”
Accessing contraception could become much more difficult because of the ruling, and access to fertility treatments could also be imperiled, 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 people. That would make IVF impossible to really function,” she said, referring to in vitro fertilization.
The clinics that provide abortion often provide gender-affirming health care to trans people, such as puberty blockers and hormones.
“LGBTQ people receive a range of reproductive health care from clinics that provide abortions, and having those clinics be open and able to operate are important,” 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.
This year, state legislators introduced more than 340 anti-LGBTQ bills, according to the Human Rights Campaign, which hosted a call for reporters on the topic earlier this month. The Equality Federation estimates 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 health care and the first to add felony penalties. And earlier this month, Florida Gov. Ron DeSantis’ administration moved to restrict transgender care for minors and for trans people of all ages on Medicaid.
Overturning precedent and same-sex marriage
The willingness of the court to overturn precedent could, some advocates fear, signal other federally protected rights of minorities may be in jeopardy, such as same-sex marriage, which became the law of the land with the Obergefell v. Hodges case.
Alito’s opinion does give cause for concern, according to some LGBTQ advocates and policymakers. Alito, who dissented in the Obergefell ruling, has since spoken openly about his opposition to the landmark ruling.
In a November 2020 speech to the conservative Federalist Society, he lamented that one can no longer say that marriage is a “union between one man and one woman” and that to do so is now considered “bigotry.”
The month prior, Alito and Thomas released a statement expressing their disapproval of the Obergefell decision when the court declined to hear the case of Kim Davis, a Kentucky clerk who refused to issue marriage licenses to same-sex couples citing her 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 overturned because the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional amendment, including the one on which defenders of Roe … now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
In his concurring opinion, Thomas called on the court to overrule a trio of watershed civil rights rulings that legalized the right to obtain contraception (Griswold v. Connecticut), the right to same-sex intimacy (Lawrence vs. Texas) and the right to same-sex marriage (Obergefell v. Hodges). In future cases, he wrote, “we should reconsider all of this Court’s substantive due process precedents.” Thomas then labeled the opinions “demonstrably erroneous” and called on his fellow jurists to “correct the error” established in them.
“We are witnessing a reordering of modern constitutional law under this court,” Jason Pierceson, a political science professor at the University of Illinois, Springfield, said. “This is a profound shift that will reverberate for decades.”
“We are going to see a movement with organizations like Alliance Defending Freedom that are going to push the envelope,” Pierceson added, referring to a conservative Christian legal advocacy group that has brought dozens of cases to the Supreme Court. “It’s an engraved invitation to bring test cases to expand the logic of this decision to other areas of constitutional law that rely on any kind of substantive due process analysis.”
Sarah Kate Ellis, president and CEO of the LGBTQ advocacy group GLAAD, called Thomas’ concurrence a “blaring red alert for the LGBTQ community and for all Americans.”
“We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell,” Ellis said in a statement. “And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are LGBTQ. But that’s 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“ that automatically spring into effect now that the court has ruled.
Currently, 29 states have same-sex marriage bans still on the books whose effects were nullified with the 2015 Obergefell ruling, according to Pierceson. In the unlikely event that the landmark decision was reversed, it would once again fall to the states to decide on the legality of same-sex marriage.
Following the leaked Dobbs decision last month, some elected officials have started taking steps to update their states’ statutes and codify same-sex marriage.
Earlier this month, Utah state Sen. Derek Kitchen, a Democrat, took steps to introduce a bill that would codify marriage equality in his state.
“There is great unpredictability in the current Supreme Court,” he said on a phone call with reporters 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 put forward similar legislation to update New Jersey state law. In January of this year, Gov. Phil Murphy signed the bill into law after it received 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 one they love,” Guardian said in a statement sent to reporters. “It is critical that we preserve the significant progress on marriage equality our country has made, and we cannot rest until the rights of all to marry are secured.”
Regarding the future of rights like same-sex marriage, Oakley believes concern, but not alarm, is appropriate.
“Justice Thomas has claimed for some time to have issues with substantive due process, because he does not like that there are constitutional rights that are not specifically enumerated,” she said. “He is saying the quiet part out loud, but it’s not surprising given that has been a target for a long time.”
In addition to due process, Obergefell v. Hodges relies on the equal protection clause of the Constitution’s 14th Amendment.
“The Obergefell case has separate legal reasons underpinning it that should allow that case to survive,” Oakley added.
Unlike abortion, public opinion has also shifted dramatically in favor of same-sex marriage over the last 25 years. According to a Gallup poll released earlier this month, 71% of Americans support same-sex marriage, a record high that includes the majority of Republicans.
While the fate of same-sex marriage may not be in immediate danger following Friday’s decision, Oakley said the ruling revealed the politicized nature of the court itself and potential threats down the road.
“The very legitimacy of the court is in the spotlight,” she said. “We know that if the court was willing to overturn 50 years of precedent with this case, that all of our constitutional rights are on the line.”