Advocates are concerned about the implications of the Supreme Court’s leaked draft of the majority opinion that overturned the landmark Roe-v. Wade abortion ruling.
The leaked draft of Dobbs in Jackson Women’s Health Organization was published by Politico in early January. Justice Samuel Alito wrote the majority opinion. It upheld Mississippi’s ban on abortion after 15 weeks. This decision overturned Roe and Planned Parenthood.
LGBTQ advocates are concerned about whether the official decision will mirror the leaked draft. They also worry about the implications for LGBTQ health. The court’s willingness and ability to change precedent could affect the landmark Supreme Court case Obergefell V. Hodges from 2015. Alito and Justice Clarence Thomas already indicated they want to reverse it.
LGBTQ advocates warn against speculation over the fate of same-sex marital relationships and urge people to pay attention to the immediate effects of the Roe, Casey rulings, as well as ongoing attacks on LGBTQ rights at state level.
Evan Wolfson, founder of Freedom to Marry, stated that the threat to women and reproductive rights is enough. The threat to freedom to wed is real. But there are more immediate and greater dangers. If we address these dangers, we can protect ourselves from any future threat to freedom to wed.
Cathryn Oakley is an attorney for the Human Rights Campaign. This largest LGBTQ rights group in the country stressed that the Supreme Court’s upcoming abortion decision will directly impact lesbians, gays, bisexuals, transgender, and other queer people.
“Reproductive health care is essential for the LGBTQ community. She said that LGBTQ people seek and get abortions. They also seek and receive contraception.
The ruling could make it more difficult to access contraception, as well as making it harder for women to obtain fertility treatments, she stated.
Oakley stated that assisted reproduction is a popular option for many LGBTQ people. Oakley stated that if the law holds that human life begins at conception then the embryos in the petri dishes are legal people. She said that IVF would be impossible to function if this was true for in vitro fertilization.
Many clinics offering abortions also provide transgender health care, including hormones and puberty blockers.
Oakley stated that LGBTQ people have access to a variety of reproductive health services from clinics that offer abortions. It is important for those clinics to be open and accessible.
In a legislative session with a record number of anti-LGBTQ legislations, the state legislatures have also restricted health care for transgender persons this year.
Adam Polaski (communications director, Campaign for Southern Equality), stated that “people have been hard at work fighting a raft anti-trans legislation throughout the South.” “There is an anti-LGBTQ push.”
Jason Pierceson, a University of Illinois Springfield political science professor, stated that there is extreme polarization in state policies on abortion and LGBTQ rights. He said that one of the most important things about Roe being overturned is its acceleration.
According to the Human Rights Campaign which hosted a Tuesday call for journalists on the topic, more than 340 antiLGBTQ bills were introduced by state legislators this session. According to the Equality Federation, at least 35 of these bills have been passed.
Alabama, which became third after Arkansas and Tennessee to adopt a law restricting transgender health care, and the first state to add felony penalties, passed a law last month. Florida Governor. Ron DeSantis’ administration acted to limit transgender care for Medicaid beneficiaries, including minors, and transgender people of all ages.
“If we extrapolate, it is a real danger that states could continue to pass bans like this and essentially make it the type of country where there’s some states where you have access to affirming health care and others where you don’t,” Polaski stated.
Advocates fear that the court’s willingness to reverse precedent could signal that other federally protected rights of minorities are at risk. For example, same-sex marriage became law in the Obergefell case.
Some LGBTQ advocates and policymakers are concerned about Alito’s draft opinion. Alito, who voted against the Obergefell ruling has spoken out about his opposition to this landmark ruling.
In a speech to the conservative Federalist Society in November 2020, he complained that it was no longer possible to say that marriage is “union between one man or one woman” and that doing so is now considered “bigotry”.
Alito and Thomas had released a statement one month before, disapproving the Obergefell decision. The court refused to hear the case Kim Davis, a Kentucky clerk, who refused to issue marriage licenses for same-sex couples because of her religious beliefs. Thomas described Davis as “one of the first victims” of the Court’s apathetic treatment of religion.
Wolfson stated, “It is evident that there are at most a few votes on the Supreme Court that would take away freedom to marry and have shown that they are willingly to strip away rights Americans have now.”
Alito claimed that Roe V. Wade should not be upheld or overturned in the leaked draft opinion. He stated that the Constitution makes no mention of abortion and no such right is impliedly protected by any constitutional amend, even the one on the Fourteenth Amendment, which is the due process clause.
Pierceson stated that he believed the language in the draft, despite Alito’s focus on abortion, “opens up the door for conservative activists” to erode rights, especially the right to same-sex marital, which he said was his concern.
He said that “Alito” had spoken about the Supreme Court creating rights that are not in the Constitution’s textual context. “Because same sex marriage is more recent, one could speculate conservative lawyers and activists could argue Obergefell or Windsor were mistakes, and need to be redressed.” United States against Windsor is a 2013 decision that overturned the Defense of Marriage Act (or DOMA), which prohibits federal recognition of same sex marriage.
Pierceson stated, “It’s an idea that only speaks to conservative political and legal activists.” It is a very radical legal document.
If the Roe and Casey decisions were overturned in the manner the opinion details, “trigger laws” would be put into effect in 13 states. These trigger laws would prohibit abortion immediately after the precedent has been struck down.
According to Pierceson, 29 states still have same-sex marriage bans in place. These effects were nullified by the 2015 Obergefell ruling. It would be up to the states to determine if same-sex marriage is legal in the unlikely event of the landmark decision being reversed.
Some elected officials have taken steps to update the statutes of their states and codify same-sex marriage in response to the Dobbs decision.
Utah State Senator Derek Kitchen, a Democrat took steps this week to introduce a bill which would codify marriage equality within his state.
He said Tuesday that the Supreme Court’s current decisions are unpredictable. “We don’t want to create panic, but we want proactive steps to ensure that families are protected.”
Kitchen followed Donald Guardian, a New Jersey Assemblyman who introduced similar legislation to amend New Jersey state law. Governor. After receiving bipartisan support from both houses, Phil Murphy signed the bill.
Guardian sent reporters a statement saying that “We cannot reverse the clock” and allow unelected officials to deny Americans the right to marry the person they love. “It is crucial that we maintain the important progress made in marriage equality. We cannot rest until all rights to marry are protected.”
Oakley stressed however that the Obergefell decision would be overturned if “many dominos” were to fall. She also said that she is “not concerned about them at this point.”
She cites the Roe v. Wade case and Obergefell V. Hodges decisions. There are overlapping legal bases, but they also have distinct legal bases.
“Roev. Wade is founded on substantive due process. This means that there are parts of human life beyond the government’s control. Oakley explained that there are areas of liberty and privacy that the government doesn’t have the authority to regulate. Oakley explained that a person’s decision about whether or not to have children is one that they make. The government cannot decide for them.
Obergefell against Hodges is not only a case of due process. It also relies upon the 14th Amendment’s equal protection clause.
Oakley said that, “Should Roe V. Wade be overturned,” the Obergefell case had separate legal reasons that should permit that case to continue.”
Public opinion has changed dramatically over the past 25 years in favor of same-sex married couples, unlike abortion. Gallup polls released this month show that 71% of Americans support same-sex marital, which is a record, and includes the majority Republicans.
Oakley stated that there is no reason to believe that marriage equality will disappear anytime soon.
Jon Davidson, an attorney representing the LGBTQ & HIV Project at American Civil Liberties Union who was co-counsel in the Obergefell case, believes that rather than overturning Obergefell’s ruling, it is more likely to try to reduce nondiscrimination protections for same-sex couples on religious liberty grounds.
The court agreed to hear the case of 303 Creative against Elenis in fall. Lori Smith, a Colorado website designer, is suing to stop her from designing wedding websites. The First Amendment is at stake here.
The final decision in the Dobbs case will be made before the close of the current Supreme Court session. It is currently ending this month.
