The leaked initial draft of a Supreme Court majority opinion revealing the landmark Roe v. Wade abortion ruling has been overturned has advocates worried about what the precedent’s reversal could mean for the LGBTQ community’s recently gained rights.
In the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, published by Politico early last month, the high court, in a 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 ruling that there is no constitutional right to abortion.
Should the official decision mirror the leaked draft, LGBTQ advocates worry about the immediate implications on LGBTQ health and whether the court’s willingness to overturn precedent could extend to the 2015 landmark Supreme Court case Obergefell v. Hodges, which Alito and Justice Clarence Thomas have already signaled they would like to reverse.
However, LGBTQ advocates caution against too much speculation about the fate of same-sex marriage, and instead urge attention to the immediate impact caused by a reversal of the Roe and the Casey rulings and the ongoing attacks on LGBTQ rights at the state levels.
“The threat to women and to reproductive rights is already enough,” Evan Wolfson, the founder of Freedom to Marry, told NBC News. “The threat to the freedom to marry is real, but there are even bigger and more imminent dangers that we need to address, and if we address those dangers, we will protect ourselves against the potential threat to the freedom to marry that may be down the road.”
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 forthcoming abortion 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.
Accessing contraception could become much more difficult because of the ruling, and access to fertility treatments could also be imperiled, she 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 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 levels this year in a legislative session that has seen a historic number of anti-LGBTQ bills.
“People have been hard at work fighting a raft of anti-trans legislation all throughout the South,” said Adam Polaski, communications director at the Campaign for Southern Equality. “There is already an anti-LGBTQ push.”
Jason Pierceson, a political science professor at the University of Illinois Springfield, said there is a tremendous polarization in state policy on abortion and LGBTQ rights. “One of the potentially most consequential things about overturning Roe is accelerating that process,” he said.
This session, state legislators introduced more than 340 anti-LGBTQ bills, according to the Human Rights Campaign, which hosted a call for reporters on the topic Tuesday. 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.
“If we extrapolate it out, there is a real threat that states could continue passing bans like that and essentially making it the kind of country where there are some states where you can access affirming health care and where you can’t,” Polaski said.
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 draft 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.”
“It is clear that there are at least a couple of votes on the Supreme Court who would take away the freedom to marry and who have shown that they are willing to strip away rights that Americans now have,” Wolfson said.
In the leaked draft 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.”
While Alito limited his analysis to abortion, Pierceson said he believes language in the draft “opens the door for conservative activists to chip away at rights recently established, particularly the right to same-sex marriage.”
“[Alito] talked about when the Supreme Court creates rights that are not textually in the Constitution,” he said. “Because same-sex marriage is newer, one could speculate that conservative lawyers and activists could argue that Obergefell and Windsor were mistakes and need to be readdressed.” United States v. Windsor is a 2013 ruling that gutted the Defense of Marriage Act, or DOMA, which prohibited federal recognition of same-sex marriage.
“It’s an opinion that only speaks to conservative legal and political activists,” Pierceson said. “It really is quite a radical legal document.”
Should the Roe and the Casey decisions be overturned the way the opinion details, so-called “trigger laws” would come into effect in 13 states that would ban abortion as soon as the precedent is struck down.
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.
In response to the leaked Dobbs decision, some elected officials are taking steps to update their states’ statutes and codify same-sex marriage.
This week, 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 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 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.”
Oakley, however, stressed that “many different dominos would have to fall” for the Obergefell decision to be overturned, and added that she’s “not worried about them at this time.”
For one, she points out that the Roe v. Wade and Obergefell v. Hodges decisions have overlapping but also distinct legal bases.
“Roe v. Wade rests 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 liberty that the government does not have the authority to enter into,” Oakley explained. “Whether and when to have children 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 Constitution’s 14th Amendment.
“Should Roe v. Wade be overturned, the Obergefell case has separate legal reasons underpinning it that should allow that case to survive,” Oakley added.
Unlike abortion, public opinion has shifted dramatically in favor of same-sex marriage over the last 25 years. According to a Gallup poll released earlier this month, 71 percent of Americans support same-sex marriage, a record high that includes the majority of Republicans.
“There is no reason for anyone to be concerned that marriage equality is going away anytime soon,” Oakley said.
Rather than overturning the Obergefell ruling, a more likely scenario is attempts to weaken nondiscrimination protections same-sex couples have on the grounds of religious liberty, according to Jon Davidson, an attorney for the LGBTQ & HIV Project at the American Civil Liberties Union, who served as co-counsel on the Obergefell case.
For example, the court has agreed to hear the case 303 Creative v. Elenis in the fall. The case concerns Colorado website designer Lori Smith, who wants to begin designing wedding websites but does not want to provide that service to same-sex couples. At stake is whether Colorado’s nondiscrimination protections violate the First Amendment.
The final ruling in the Dobbs case is expected before the end of the current Supreme Court session, which ends this month.