With a heavily conservative Supreme Court signaling that they would hobble or overturn landmark abortion decision Roe v. Wade, more questions were raised about other seemingly set in stone decisions, especially those surrounding LGBTQ rights. In the fall, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health.
In 2018, Jackson Women’s Health Organization, a clinic and abortion facility in Mississippi, challenged the “Gestational Age Act,” a law that prohibits abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court heard the case and granted a summary judgement, holding that the law was unconstitutional, and stopped the law’s enforcement.
The 5th Circuit agreed with the court’s ruling and the appeal was taken to the Supreme Court by the state of Mississippi. Roe v. Wade, the landmark decision from 1973 where the Supreme Court ruled a state law banning abortions was unconstitutional made abortion legal in many circumstances, saying that a woman’s right to privacy extended to her fetus/unborn child.
Justice Sonia Sotomayor sounded a warning, concerned that a gutting of abortion laws could also bring challenges to other “set in stone” laws and decisions, especially those covering LGBTQ rights. During the oral arguments heard in December in Dobbs vs. Jackson Women’s Health, Justice Amy Coney Barrett asked Solicitor General Scott Stewart of Mississippi, who is defending the state’s restrictive abortion law, if a decision in their favor would affect the cases cited by Sotomayor. Stewart said that cases involving contraception, same-sex marriage and the legality of sodomy wouldn’t be questioned because they involve “clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out.”
Sotomayor was not satisfied with the answer, replying, “I just think you’re dissimulating when you say that any ruling here wouldn’t have an effect on those.”
Sharon McGowen of Lambda Legal, agreed with Sotomayor, saying that cases like Lawrence v. Texas (2003, struck down laws prohibiting sodomy) and Obergefell v. Hodges (2015, upheld same-sex marriage) “were built on the foundation of Roe…and the court’s other reproductive rights cases.”
Abortion rights and LGBTQ rights have previously fallen under the Supreme Court’s interpretation of due process rights, something that has LGBTQ rights advocates nervous. Ripple effects from gutting abortion laws and diminishing bodily autonomy could include allowing states to once again pass and enforce laws on sodomy, and enact bans on transgender health care, especially in states where the belief that gender-affirming care is considered self- harm.
Though this is not an immediate threat, it is something to watch and follow very closely.
“The only thing I would underscore is this: the dismantling of Roe could affect LGBTQ folks but that’s not the only reason queer and trans people should care about it,” Marshall Martinez, executive director of Equality New Mexico, said. “We believe our community should be fully engaged in abortion access because it’s the right thing to do, not because it’s just about Roe.”
