On Friday, the U.S. Supreme Court overturned the landmark Roe v. Wade ruling guaranteeing the constitutional right to an abortion by a 5-4 vote, setting up a scenario in which more than half of the states in the country could be poised to, at some point, explicitly ban the procedure.
With Roe overturned, the legality of abortion now depends on individual state laws, who will be allowed to regulate the procedure — or ban it outright — as they see fit.
The ruling came in response to a dispute over a 2018 Mississippi law that banned abortions after 15 weeks, under the guise of prohibiting “inhumane procedures” on the grounds that a fetus is allegedly capable of detecting and responding to pain at that point in a pregnancy. The law made exceptions for medical emergencies or cases of severe fetal abnormality, but not for rape or incest. It was challenged soon after passage, but was blocked from being enforced by a court order. The high court voted 6-3 to uphold that law, but Chief Justice John Roberts stopped short of endorsing a complete overturn of Roe v. Wade.
Supporters of abortion rights received early warning of the forthcoming decision after an early draft of the opinion was leaked last month, triggering a wave of protests across the country, including outside the homes of some members of the high court.
Following the leak of the draft opinion, authored by Justice Samuel Alito, Democrats in Congress attempted to advance legislation — all but doomed to fail, given the need to win over 60 votes just to bring up any bill in the U.S. Senate — that would have guaranteed access to abortion nationwide. But that measure was blocked on a largely party-line vote, with all 50 Republicans and Democrat Joe Manchin voting against beginning debate on the bill.
According to NBC News, legal scholars said the decision marks one of the few times the high court has overturned an earlier decision establishing a constitutional right — and the only time it took away a right with considerable public support.
According to Gallup, 35% of Americans believe abortion should be legal under any circumstance, 50% believe it should be legal only under certain circumstances, and 13% believe it should be illegal in all cases. Fifty-five percent of Americans describe themselves as “pro-choice,” while only 39% describe themselves as “pro-life.”
That fact has some LGBTQ advocates concerned that the conservative court would have no qualms overturning any number of pro-LGBTQ decisions issued by the court in the past.
This includes the 2015 Obergefell v. Hodges decision legalizing same-sex marriage nationwide and the 2013 U.S. v. Windsor decision that overturned part of the Defense of Marriage Act that had denied federal recognition for same-sex marriages performed in states where marriage equality was legal.
It also includes the 2003 Lawrence v. Texas decision that overturned state “anti-sodomy” laws criminalizing homosexuality (which itself reversed an earlier 1986 Supreme Court decision upholding those laws).
Several of the high court justices explicitly stated in their opinions that the overturn of Roe did not signal that the court would overturn other decisions establishing constitutional rights — with Alito going out of his way to mention same-sex marriage, arguing that abortion is different because it deals with a human life.
However, court observers note that Alito’s remarks on same-sex marriage are not essential to the decision, and therefore are not legally binding. Additionally, the legal rationale underlying Roe relies heavily on the idea that private conduct or behavior is protected, which was the same rationale used to argue for the overturn of anti-sodomy laws and laws prohibiting same-sex marriage.
Justice Clarence Thomas went even further in a concurring opinion, calling on the high court to revisit all those decisions involving rights not explicitly mentioned in the constitution — including decisions that established the right of married couples to use contraception, the right to engage in consensual same-sex activity, and the right to same-sex marriage.
The LGBTQ media advocacy organization GLAAD blasted the decision.
“The message here is clear and distressing: Americans are losing protected access to abortion, a constitutional right they have valued for nearly fifty years, and other rights to personal liberty are at risk too,” Sarah Kate Ellis, the president and CEO of GLAAD, said in a statement.
“The anti-abortion playbook and the anti-LGBTQ playbook are one and the same,” she added. “Both are about denying control over our bodies and making it more dangerous for us to live as we are. Both divide our country into free and less free, the opposite of what the United States should be. Our bodies, healthcare and our future belong to us, not to a meddling politician or extremist Supreme Court justices, and we will fight back.”
The Modern Military Association of America, an organization representing LGBTQ military members and veterans, said that the decision threatens the security and stability of military families.
“The tremendous amount of legal chaos and fear this court just inflicted on countless military families who often have no choice where they are stationed is truly unprecedented and despicable,” Jennifer dane, the group’s CEO and executive director, said in a statement. “We are incredibly concerned about what the Supreme Court’s decision means for service members stationed in states that have stripped away their rights and criminalized their reproductive decisions. We are also deeply alarmed by Justice Thomas’ radical pledge to revisit and overturn the marriages of thousands of our military families.”
LGBTQ Victory Fund President and CEO Annise Parker also lamented the decision.
“Our worst fears have come to pass. With partial or complete abortion bans and trigger laws encoded at the state level across the country, millions of Americans have lost their right to make life-saving medical decisions about their own bodies,” Parker said in a statement. “This assault on our fundamental freedoms by a Supreme Court willing to choose politics over precedent will cost lives and will disproportionately affect access to critical reproductive health care for people of color and low-income communities. It may also have cascading effects on legal cases pertaining to the LGBTQ community, especially for trans and nonbinary people as they face an unprecedented increase in legal and legislative attacks.”
Amit Paley, the CEO and executive director of The Trevor Project, the world’s largest suicide prevention and crisis intervention organization for LGBTQ youth, said the decision “is causing many people to experience a wide range of concerns for bodily autonomy, LGBTQ rights, and public health, including mental health.”
“Overturning Roe v. Wade will allow states to further restrict and regulate essential health care and reduce access to the already limited number of LGBTQ-competent providers in many parts of the country, posing a threat to the health and safety of young LGBTQ people,” Paley said in a statement. “In undermining decades of jurisprudence on the constitutional right to privacy, this decision could also jeopardize the rights afforded to LGBTQ people in the landmark Obergefell and Lawrence decisions — to love who you love and be who you are without fear of criminalization.”
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