The Advocate July/Aug 2022
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Overturning Roe Is Already Upending Thousands of LGBTQ+ Lives

SCOTUS

Views expressed in The Advocate’s opinion articles are those of the writers and do not necessarily represent the views of The Advocate or our parent company, Equal Pride.

Justice Clarence Thomas’s concurring opinion when the Supreme Court overturned Roe v. Wade is sounding alarm bells for LGBT rights advocates. It should. At protests across the United States, signs warned “they won’t stop at Roe.”

Thomas called on the court to “revisit” other decisions based on a constitutional right to privacy. Among these are Griswold v. Connecticut, which recognized a constitutional right to marital privacy; Lawrence v. Texas, which recognized the right to engage in same-sex conduct in private; and Obergefell v. Hodges, which recognized the right of same-sex couples to marry.

But Justice Thomas’s concurrence isn’t the only reason that LGBT people should care about the Dobbs v. Jackson decision. Access to abortion affects many fundamental human rights, and everyone should care when that access is taken away.

First, abortion should be an option for anyone who can get pregnant, including lesbian, bisexual, and queer women and girls, trans men and boys, and nonbinary folks. One analysis of the National Survey for Family Growth found that, among women who have been pregnant, lesbians and bisexual women are more likely than heterosexual women to have had an abortion. Other data indicate that bisexual women are more likely than heterosexual women to become pregnant at any age, to become pregnant as a teenager, and to have an abortion.

Second, the negative impact of bans and abortion restrictions on reproductive and sexual health care is likely to cut LGBT people off from the already dwindling resources they need, especially in rural or conservative areas. Human Rights Watch has documented the challenges that LGBT people face in accessing sexual and reproductive health care, including gender-affirming hormone therapy, fertility treatment, pre-exposure prophylaxis (PrEP), and screenings for sexually transmitted infections.

Particularly for those who need inclusive and nonjudgmental care, Planned Parenthood affiliates and other reproductive health care providers have often been trusted lifelines. The closure of some clinics due to states enacting abortion bans, paired with restrictions on gender-affirming care, risk stranding many LGBT people without access to health care and exacerbating long waits or travel times to receive care from the overburdened providers who remain in operation or from health services in more permissive states.

Third, sexual and reproductive health and rights have common foundations that are jeopardized by the majority’s sweeping repudiation of Roe and its logic. Roe recognized “a right of personal privacy, or a guarantee of certain areas or zones of privacy,” that encompasses intimate relationships, procreation, marriage, and family relationships. The notion that the constitution protects certain unenumerated but fundamental rights from state interference, also known as substantive due process, was also central to landmark decisions like Lawrence and Obergefell.

After Dobbs was decided, the Texas attorney general, Ken Paxton, said he would defend a state ban on same-sex activity if the Supreme Court revisits the issue. Alabama’s attorney general, Steve Marshall, has already cited Dobbs in federal court to defend the state’s ban on gender-affirming care for transgender youth.

Finally, some state lawmakers have already signaled that they feel emboldened by the court’s decision to revoke LGBT people’s rights. Following the ruling, legislators in Utah suggested that they would like to see the Supreme Court revisit the issue of marriage equality and allow individual states to decide whether to allow same-sex marriage. Even if lawmakers do not succeed in overturning precedents, their attempts will threaten and demean LGBT people and families.

And if they do succeed, the repercussions will be devastating. According to the Movement Advancement Project, only 16 U.S. states do not have a constitutional or statutory restriction on the books that could potentially bar same-sex couples from marrying if Obergefell is overturned.

While repudiating LGBT rights would be a dramatic and unpopular reversal that would impact millions of people in the U.S., the court’s decision to reverse Roe has demonstrated its indifference to popular sentiment or to the actual suffering their rulings will cause. Nearly one in four women in the United States will get an abortion before age 45. In limiting their rights, the court was not swayed by public opinion, as polls showed that almost two-thirds of Americans believed that Roe should not be overturned.

Nor was it influenced by international trends. Recently, Argentina, Chile, Colombia, Ireland, Mexico, South Korea, and Thailand have all decriminalized abortion or made it easier to access, recognizing that criminalizing abortion jeopardizes human rights and gender equality. Nor was the majority swayed by the arguments of the dissenting justices that the court is closing its eyes to the suffering the Dobbs opinion will impose.

The court this term has shown little restraint in overturning existing precedent that has protected civil and human rights. It has upended precedents that allow states to regulate guns, enable criminal defendants to sue when their rights are violated, and protect the separation of church and state.

The Supreme Court typically hands down its most controversial and important decisions in June. In recent years, LGBT people have been able to celebrate major victories for LGBT rights during Pride celebrations across the United States: the demise of the federal Defense of Marriage Act in 2013, the right to marry nationwide in 2015, and the recognition that federal nondiscrimination law protects LGBT employees in 2020. However, there have been recent mixed decisions too, such as when the court has ruled on technical grounds in favor of religious objectors who do not wish to serve LGBT people.

But it isn’t only LGBT cases that matter for LGBT rights. The same month that the Supreme Court struck down part of the Defense of Marriage Act in United States v. Windsor, it issued its opinion in Shelby County v. Holder, gutting the Voting Rights Act and setting the stage for state voter suppression efforts across the United States. As important as Windsor was for LGBT rights, Shelby County may have been at least as decisive, limiting the voting power of minority groups and shoring up single-party control in many parts of the United States.

As many LGBT people of color warned when Shelby County was decided, the rollback of any fundamental rights and democratic protections disproportionately threatens LGBT people and other marginalized groups.

The decision in Dobbs has enormous potential to upend a wide array of human rights, including to bodily autonomy and intimate relationships. In the months and years ahead, it’s critical for LGBT people to work to restore abortion rights and support all those who seek abortions, because everyone has a stake in a world in which bodily autonomy and intimate relationships are protected from state interference and equality in all its forms is realized.

Ryan Thoreson is a law professor and a researcher in the LGBT Rights Program at Human Rights Watch.

Tags: Voices, Women, Law

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