Supreme Court ruled today that states may ban abortion

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The language the court decision used is dismissive of the LGBTQ community

In a ruling that is expected to have significant repercussions for LGBT people, the U.S. Supreme Court today ruled 6 to 3 that the U.S. Constitution “does not prohibit” states from banning abortion.

Underscoring that concern, Justice Clarence Thomas wrote a concurring opinion that urges the court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Lawrence struck down state bans against same-sex sexual relations; Obergefell struck state bans against marriage for same-sex couples; and Griswold struck bans against couples using contraceptive.

In language that is overtly dismissive of concern for how the decision will impact other rights, including the right of same-sex couples to marry, the right to have same-sex relations, and the right to obtain contraception, Justice Samuel Alito wrote that these considerations are “too much” and lack “any serious discussion.”

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” wrote Alito, who was joined on the majority opinion by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts did not sign onto Alito’s decision but issued his own opinion, concurring in the judgment.  

Alito offers thin reassurance that the decision will not impact these other rights.

He said the majority has “stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” saying abortion involves taking a “potential life,” while the decisions in the other cases do not. Then he adds this:

“Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence,” said Alito. Given that the Dobbs decision analysis of stare decisis (respect for precedent) overturns the 50-year-old Roe v. Wade decision, this reassurance falls empty. Obergefell v. Hodges, striking state bans on same-sex marriage, was issued only seven years ago. Lawrence v. Texas, striking state bans on consensual sex between same-sex adults, was issued only 19 years ago.

Adding to that concern, Justice Clarence Thomas, in a concurring opinion (see page 3), urges the court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. He said the court has “a duty to ‘correct the error’ established in those precedents….”

The 6 to 3 decision came in Dobbs v. Jackson, a case in which an abortion clinic challenged a new law in Mississippi that banned abortion at any time after 15 weeks, unless there is a medical emergency or severe fetal abnormality.

In an unprecedented development, a draft of a majority opinion was leaked to the press, seeming to indicate that the court was poised to overturn its long-standing decisions protecting the right to abortion. LGBTQ legal activists were alarmed at the language of that draft, written by Justice Samuel Alito, saying it lay the groundwork to overturn landmark decisions in support of rights for LGBTQ people.

Roe v. Wade, in 1973, said the Constitution implies that citizens have a right to privacy and liberty and that those rights cover the right to choose an abortion. Planned Parenthood v. Casey, in 1992, said states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden to women who seek an abortion.

During oral argument December 1, the Supreme Court justices discussed the implications for the Dobbs decision on two major LGBT decisions: Lawrence v. Texas and Obergefell v. Hodges. Lawrence ruled that states could not ban sexual relations between same-sex couples; Obergefell ruled that states could not ban same-sex couples from marrying.

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