With the landmark abortion case overturned, some advocates fear gender-affirming care could be in jeopardy and gay marriage could face an uncertain future.
The Supreme Court’s 5-4 opinion Friday overturning the landmark Roe v. Wade abortion ruling has advocates worried about what the precedent’s reversal could mean for LGBTQ health and the community’s recently gained rights.
In the Dobbs v. Jackson Women’s Health Organization’s ruling — a similar version of which leaked last month — the majority opinion written by Justice Samuel Alito upheld Mississippi’s law banning abortion after 15 weeks of pregnancy and overturned both Roe and Planned Parenthood v. Casey, effectively eliminating the constitutional right to abortion.
Justice Clarence Thomas, in a concurring opinion, wrote the court should reconsider all of its “substantive due process precedents,” including Lawrence v. Texas, the 2003 decision that established the right to same-sex intimacy, and Obergefell v. Hodges, which legalized same-sex marriage in 2015. (Both Alito and Thomas have previously expressed a desire to reverse Obergefell).
Despite the high court’s willingness to overturn precedent and the concurring opinion by Thomas, LGBTQ advocates cautioned against too much speculation about the fate of rights like same-sex marriage. They instead urge attention to the immediate impact caused by a reversal of the Roe and Casey rulings and the ongoing attacks on LGBTQ rights at state levels.
“We knew that Justices Alito and Thomas would like to rip out the progress and security that Americans have felt about the rights we have fought for and won over decades,” Evan Wolfson, the founder of Freedom to Marry, told NBC News. “We don’t need to speculate about how many more bad things will come. What they have done is already betrayal enough.”
Abortion access and transgender health care
Cathryn Oakley, an attorney with the Human Rights Campaign, the country’s largest LGBTQ rights group, stressed that the high court’s decision will have a direct impact on lesbian, gay, bisexual, transgender and queer people.
“The LGBTQ community relies on reproductive health care. LGBTQ people seek and receive abortions, they seek and receive and use contraception,” she said.
For example, lesbians (22.8 %) and bisexual women (27.2%) who have been pregnant are more likely than heterosexual women (15.4%) to have had an abortion, according to HRC’s analysis of the 2017-2019 National Survey for Family Growth.
Due to issues including abortion-access barriers and health care mistreatment, over a third of transgender people who have been pregnant considered terminating the pregnancy themselves, and nearly 1 in 10 of them went through with the attempt, according to a 2019 report published in the journal BMJ Sexual & Reproductive Health
“Anytime you minimize a right, the impacts fall the most on the people who are multiply marginalized,” Oakley said. “Today’s decision will hurt people of color, people who have lower incomes. It’s going to be really hard for those who don’t have the resources to travel to get the health care they need.”
Accessing contraception could become much more difficult because of the ruling, and access to fertility treatments could also be imperiled, Oakley said.
“Many LGBTQ people rely on assisted reproduction,” she said. “If the law believes that human life begins at conception, that means those embryos in the petri dish are legally people. That would make IVF impossible to really function,” she said, referring to in vitro fertilization.
The clinics that provide abortion often provide gender-affirming health care to trans people, such as puberty blockers and hormones.
“LGBTQ people receive a range of reproductive health care from clinics that provide abortions, and having those clinics be open and able to operate are important,” Oakley said.
Health care for transgender people has also been legally restricted at the state level this year in a legislative session that has seen a historic number of anti-LGBTQ bills.
This year, state legislators introduced more than 340 anti-LGBTQ bills, according to the Human Rights Campaign, which hosted a call for reporters on the topic earlier this month. The Equality Federation estimates at least 35 have passed so far.
Last month, Alabama became the third state, after Arkansas and Tennessee, to pass a law restricting the provision of transgender health care and the first to add felony penalties. And earlier this month, Florida Gov. Ron DeSantis’ administration moved to restrict transgender care for minors and for trans people of all ages on Medicaid.
Overturning precedent and same-sex marriage
The willingness of the court to overturn precedent could, some advocates fear, signal other federally protected rights of minorities may be in jeopardy, such as same-sex marriage, which became the law of the land with the Obergefell v. Hodges case.
Alito’s opinion does give cause for concern, according to some LGBTQ advocates and policymakers. Alito, who dissented in the Obergefell ruling, has since spoken openly about his opposition to the landmark ruling.
In a November 2020 speech to the conservative Federalist Society, he lamented that one can no longer say that marriage is a “union between one man and one woman” and that to do so is now considered “bigotry.”
The month prior, Alito and Thomas released a statement expressing their disapproval of the Obergefell decision when the court declined to hear the case of Kim Davis, a Kentucky clerk who refused to issue marriage licenses to same-sex couples citing her religious beliefs. Thomas called Davis “one of the first victims of this Court’s cavalier treatment of religion.”
