Supreme Court’s reversal of abortion rights is a ‘red alert’ to LGBT+ community

Clarence Thomas suggests overturning Roe v Wade could upend other 14th Amendment protections for marriage equality and other civil rights

The US Supreme Court’s reversal of constitutional protections for the right to an abortion has raised fears among civil rights groups and LGBT+ advocates that its ruling could lead to challenges against marriage equality and other rights previously defended by the court.

A decision to revoke abortion rights from the high court’s conservative majority on 24 June “puts at risk all the liberty and autonomy rights secured by decades of case law both before and after Roe v Wade ”, said Jennifer Pizer, the acting chief legal officer with LGBT+ rights group Lambda Legal.

The opinion authored by Justice Samuel Alito states that abortion rights are not “rooted in the nation’s history and tradition” and not “mentioned” in the constitution, therefore illegitimate, though he acknowledges that the list is extensive – including the right to obtain contraception or marry a person of another race or sex.

As LGBT+ advocates warned the nation about the far-reaching consequences of the Supreme Court’s decision in its aftermath, Republican officials took to the airwaves on Sunday to justify the landmark ruling, and Democrats urged Congress and President Joe Biden’s administration to fortify protections for abortion care.

“Trigger” laws that make abortion illegal, designed to go into effect without Roe protections, were enacted in at least seven states over the weekend. The Republican governors of Arkansas and South Dakota defended their measures – banning abortions even in pregnancies from rape or incest – across Sunday morning news networks.

Meanwhile, Democratic Senator Elizabeth Warren and US Rep Alexandria Ocasio-Cortez condemned the high court’s decision and suggested there should be consequences.

“What makes it particularly dangerous is that it sends a blaring signal to all future nominees that they can now lie to duly-elected members of the United States Senate to obtain Supreme Court confirmations,” said Ms Ocasio-Cortez, pointing to indications from Justices Brett Kavanaugh and Neil Gorsuch that they believed Roe was established law in their Senate testimonies.

“I believe lying under oath is an impeachable offense,” she added.

A CBS News/YouGov poll released on Sunday found that Democratic respondents are more likely to participate in the upcoming midterm elections in the wake of the Supreme Court ruling. By comparison, the percentage of Republicans who said the same was 30 points lower.

The poll found that 59 per cent of Americans disapprove of the ruling, including 67 per cent of women. Fifty-six per cent of Americans believe it will make women’s lives worse.

A majority of those who disapprove of the ruling believe the Supreme Court will limit same-sex marriage next.

The 1973 decision in Roe v Wade relied on protections granted in the Constitution’s 14th Amendment, drafted in the Reconstruction-era aftermath of the US Civil War. The amendment prohibits states from “[depriving] any person of life, liberty, or property, without due process of law” – granting so-called “unenumerated” rights central to the nation’s civil rights.

But it is the concurring opinion of Justice Clarence Thomas to the ruling in Dobbs v Jackson Women’s Health Organization, the case at the centre of the latest battle for abortion rights, that has raised alarms for LGBT+ rights. Justice Thomas suggested that the court “reconsider all of this court’s substantive due process precedents” – including landmark cases involving same-sex marriages, gay sex, and contraception.

“Because any substantive due process decision is ‘demonstrably erroneous’... we have a duty to ‘correct the error’ established in those precedents,” Justice Thomas wrote. “The question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Those cases include Griswold v Connecticut, which ruled that states had no right to ban contraception; Lawrence v Texas, which struck down laws banning same-sex sex; and Obergefell v Hodges, which ruled that same-sex couples could legally marry.

The Dobbs ruling could “jeopardize the rights afforded to [LGBT+] people in the landmark Obergefell and Lawrence decisions – to love who you love and be who you are without fear of criminalization,” according to Amit Paley, executive director of suicide prevention and LGBT+ mental healh organisation The Trevor Project.

Sara Kate Ellis with GLAAD, the largest LGBT+ media advocacy organisation, said Justice Thomas’ writing is a “blaring red alert” for LGBT+ people.

“We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell,” she said. “And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are [LGBT+].”

In their dissenting opinion, liberal Justices Stephen Breyer, Elena Kagan and Sonia argued that the three cases mentioned by Justice Thomas “are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions.”

“So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the justices wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Justice Alito contended that his opinion “should be understood to cast doubt on precedents that do not concern abortion.”

Republican Senator Lindsey Graham suggested he does not believe the Supreme Court will revoke protections for marriage equality and contraception, telling Fox News on 26 June that he believes Justice Alito “set the right tone.”

“He said nothing in this decision puts those cases at risk,” he said. “The reason he decided that Roe v Wade was wrongly decided is because it deals with the potential for life. He made a distinction between same-sex marriage and contraception, which I think will win the day over time.”

Lamda Legal said Justice Alito’s assurances “provide little comfort given the now-obviously-hollow assurances offered in Senate confirmation hearings that abortion rights are settled law.”

“Make no mistake: [the] decision threatens all of these fundamental personal rights,” Ms Pizer added. “It is an extremist assault on the privacy, self-determination, dignity, and equality of every person in our country.”

Jim Obergefell, the lead plaintiff in the landmark same-sex marriage case that was decided in 2015, said in a statement following the ruling that “the millions of loving couples who have the right to marriage equality to form their own families do not need Clarence Thomas imposing his individual twisted morality upon them.”

“If you want to see an error in judgment, Clarence Thomas, look in the mirror,” he said.