Some exchanges during the arguments over Mississippi’s restrictive abortion law at the U.S. Supreme Court Wednesday made clear the relationship between reproductive freedom and LGBTQ+ equality.
Hearing Dobbs v. Jackson Women’s Health Organization, Justice Sonia Sotomayor, one of the court’s three liberals, said undermining the right to abortion, which is based on the right to privacy, could threaten other privacy-derived freedoms not specifically enumerated in the Constitution.
The court has recognized these rights “in terms of the religion parents will teach their children,” she said. “We’ve recognized it in their ability to educate at home if they choose. We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.”
Justice Amy Coney Barrett, a conservative appointed by Donald Trump, asked Mississippi Solicitor General Scott Stewart, who was defending the state’s law, if upholding the law would undermine those rights.
He replied that it would not. The cases cited by Sotomayor, he said, “draw clear rules: You can't ban contraception, you can't ban intimate romantic relationships between consenting adults, can't ban marriage of people of the same sex. Clear rules that have engendered strong reliance interests and that have not produced negative consequences.” He also said none of those cases “involve the purposeful termination of a human life,” but that abortion does. The Mississippi law bans abortion after 15 weeks of pregnancy.
Sotomayor was not convinced. “I'm not sure how your answer makes any sense. … I just think you’re dissimulating when you say that any ruling here wouldn’t have an effect on those,” she said.
Two of the most conservative justices, Clarence Thomas and Samuel Alito, have made clear they would like to see the marriage equality ruling, Obergefell v. Hodges, overturned.
Later, Justice Brett Kavanaugh, another Trump appointee, raised the issue of stare decisis — the doctrine that courts should adhere to the precedents set by earlier decisions except in extraordinary circumstances — and brought up Obergefell and Lawrence v. Texas, which struck down all remaining sodomy laws, to argue in favor of overturning the right to abortion as established in Roe v. Wade and affirmed in Planned Parenthood v. Casey. Obergefell and Lawrence both went against precedent, he said.
Kavanaugh’s line of reasoning enraged Sharon McGowan, chief strategy officer and legal director at Lambda Legal. She issued the following statement:
“Justice Kavanaugh suggested that two key Supreme Court decisions protecting LGBTQ civil rights — Lawrence v. Texas and Obergefell v. Hodges — support overruling Roe v. Wade and Planned Parenthood v. Casey. To that we say, NOT IN OUR NAME. LGBTQ people need abortions. Just as important, those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite. They reflected the growing societal understanding of our common humanity and equality under law. Just as the Supreme Court in Brown v. Board of Education rejected the lie of ‘separate but equal,’ the Supreme Court’s decisions in Lawrence and Obergefell appropriately overruled precedent where it was clear that, as was true with regard to race, our ancestors failed properly to acknowledge that gender and sexual orientation must not be barriers to our ability to live, love, and thrive free of governmental oppression. Abortion rights are essential not only because abortion is basic healthcare, but because without access to abortion, people who need that healthcare cannot determine the course of their own lives and participate equally in society. They cannot decide how to structure their families, protect their own health, determine their educational and financial futures, and secure the futures of existing children. These landmark LGBTQ cases, which Lambda Legal litigated and won, and on which we rely today to protect our community’s civil rights, were built directly on the foundation of Casey and Roe. Our interests in equal dignity, autonomy, and liberty are shared, intertwined, and fundamental.”
McGowan also told the Bloomberg news service that the decisions in Lawrence and Obergefell “were built on the foundation of Roe and Casey and the court’s other reproductive rights cases.” So the undermining of abortion rights would be “cause for serious concern,” she added.
Several LGBTQ+ groups argued for upholding abortion rights — and striking down the Mississippi law — in a friend-of-the-court brief filed with the Supreme Court prior to the hearing. In such briefs, people and organizations not among the parties in the case can submit opinions on how they would like the court to rule.
“This Court rarely — if ever — overrules precedent to take away a previously recognized constitutional right,” the groups wrote. “Doing so now cannot be reconciled with this Court’s decisions affirming the fundamental equality of women and of LGBTQ people or with its decisions banning discrimination based on sex. In addition to unduly burdening a fundamental right, Mississippi’s law violates the fundamental guarantee of equal protection, creating a sex-based classification that inflicts serious harms on women. … Mississippi asks this Court to return the country to a time when the law subordinated women by denying them equal liberty because of their sex. The Court should reject this devastating wrong turn and decline to roll back the clock.” They also pointed out that members of the LGBTQ+ community do encounter unintended pregnancies and need to access abortion just as others do.
The court’s ruling is likely several months away. It could rule in a limited fashion, perhaps simply upholding the Mississippi law, or issue a sweeping decision overturning Roe, which would free states to ban or severely restrict abortion.