Story at a glance
- LGBTQ+ activists worry that overturning Roe v. Wade could put modern LGBTQ+ rights at risk.
- Supreme Court Justice Samuel Alito in a leaked draft opinion said the right to an abortion was not protected because it is not “deeply rooted” in the nation’s history.
- LGBTQ+ leaders say Alito’s opinion threatens the right to privacy, which landmark LGBTQ+ Supreme Court decisions rely on.
After a draft Supreme Court opinion seeking to overturn Roe v. Wade, which has protected the constitutional right to abortion for nearly five decades, was leaked this week, activists said they began to worry that other landmark rulings — on which modern LGBTQ+ rights hinge — may be targeted next.
Protections stemming from cases like Lawrence v. Texas, which invalidated discriminatory sodomy laws, and Obergefell v. Hobbs, which legalized same-sex marriage in the U.S., will not immediately disappear with the overturning of Roe, but they may be weakened.
Because of Roe, there’s an established idea that “there are parts of your body and there are intimate spaces that the government is not allowed to regulate,” Cathryn Oakley, the state legislative director and senior counsel at the Human Rights Campaign, an LGBTQ+ advocacy and lobbying group, told Changing America.
“For that to go away with Roe … that would very much erode the underpinning of the Lawrence v. Texas case,” she said. “With Roe gone, there’s very little legal foundation for the Lawrence case to rest upon.”
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But Oakley added that, in overturning Roe, the court would also be overturning 50 years of precedent and virtually abandoning the rule of law, making its next move almost impossible to predict.
“That’s a really hard thing to say as a lawyer, but I think it’s a really scary moment for America,” Oakley said. “It’s a really scary moment for the rule of law. It’s a scary moment for democracy. And yeah, it’s a scary moment for LGBTQ people.”
Overturning Roe could also “embolden” state lawmakers to consider legislation targeting LGBTQ+ people — particularly transgender and nonbinary youth — in the U.S. Already, more than 300 discriminatory bills have been introduced in state legislatures nationwide, according to an HRC tally.
First reported by POLITICO, the initial draft abortion opinion, authored by conservative Justice Samuel Alito, states that “Roe was egregiously wrong from the start.” Should it become the majority ruling, Roe would be overturned at a time when at least 26 states are poised to quickly enact bans on abortion, leaving millions of women and others of reproductive age without abortion access.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes in the opinion for a case challenging a Mississippi law that outlaws virtually all abortions after 15 weeks of pregnancy.
“We really have to think about what’s being said here and what’s being signaled here for marginalized communities,” Sarah Kate Ellis, the president of the LGBTQ+ media monitoring group GLAAD, said Wednesday in an interview. “The language is not a mistake.”
When the Constitution was drafted more than 200 years ago, it had been created to benefit white, cisgender men, Ellis said.
“It was written for them and their needs and their desires,” she said, and the needs of LGBTQ+ people and people of color are simply “not in there.”
Should Roe be overturned because the right to abortion is not “deeply rooted” in the country’s history, Ellis said there’s little reason to believe the Supreme Court would not seek to overturn its landmark ruling in Obergefell.
In 2020, Alito himself, along with Supreme Court Justice Clarence Thomas, criticized the court’s ruling in Obergefell, writing that the decision has had “ruinous consequences for religious liberty.”
According to the two Justices, the court’s decision in Obergefell allows courts and governments to “brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”
Alito in his leaked opinion, which Supreme Court Chief Justice John Roberts confirmed Tuesday as authentic, writes that provisions of the Constitution dealing with privacy, like the Due Process Clause of the 14th Amendment, do not apply to abortion rights.
“Alito was clearly signaling that he’d like to remove the rights of privacy, which would then bring into question Obergefell and Lawrence,” Annise Parker, the president and chief executive of the LGBTQ+ Victory Fund and Victory Institute, told Changing America.
“We believe the the right to privacy is fundamental to not just the abortion issue,” she said. “It is fundamental to our ability to live our lives openly and honestly.”
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