The U.S. Supreme Court is poised to overturn Roe v. Wade, and marriage equality could be next

A leaked draft opinion from conservative Justice Samuel Alito could spell disaster for LGBTQ2S+ rights

The U.S. Supreme Court’s conservative majority intends to repeal Roe v. Wade, the crucial 1973 decision that secured the right to abortion access, according to a draft opinion released by Politico on Monday night. Overturning Roe could imperil other civil rights decisions like the Supreme Court’s 2015 marriage equality ruling, as many LGBTQ2S+ advocates warn.

The draft, which was reportedly leaked by a clerk, includes an opinion from Justice Samuel Alito first circulated in February. In the draft, Alito opines that the groundbreaking ruling that has guaranteed the right to abortion for 50 years was “egregiously wrong from the start.”

“We hold that Roe and Casey must be overruled,” Alito writes in the 98-page document. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

Alito’s words do not represent a definite, binding opinion. Supreme Court justices are known to change their votes as drafts circulate, and a ruling in the case in question, Dobbs v. Jackson Women’s Health Organization, is not technically due until June or July. But even prior to the draft’s release, the court’s conservative majority was widely expected to vote to overturn Roe. During the November oral arguments, conservative justices displayed a marked hostility toward reproductive rights, leading to predictions that Roe’s half century of precedent was in jeopardy. 

Alito’s draft opinion critiques Obergefell v. Hodges, the 2015 case that legalized marriage equality, by claiming that the decision protects rights that are not “deeply rooted in history,” similar to Roe. In the same breath, Alito also references Lawrence v. Texas, the landmark 2003 ruling overturning state-level sodomy bans.

While Alito ultimately claims that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the George W. Bush appointee  previously stated that he’d like to overturn marriage equality. 

 

In an October 2020 statement accompanying the Supreme Court’s rejection of an appeal brought by former Kentucky county clerk Kim Davis after she was sued for refusing to issue marriage licences to same-sex couples, both Alito and fellow conservative Clarence Thomas justices took aim at Obergefell. While they agreed with the court’s decision to not take up the case, Thomas and Alito referred to Davis as “one of the first victims of this court’s cavalier treatment of religion” following the same-sex marriage ruling.

Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss,” the justices argued.

“None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this Court, and we must fight back in every way possible,”

In response to Monday’s leaked draft, advocacy groups swiftly condemned the probable repeal of Roe and recognized the implications for LGBTQ2S+ equality. The Human Rights Campaign, America’s largest LGBTQ2S+ rights group, said its staff is “furious and outraged. “Reproductive rights are LGBTQ+ rights, and they must be protected,” HRC wrote in a tweet thread.

GLAAD president and CEO Sarah Kate Ellis called the Supreme Court’s draft opinion an “assault on all Americans” and called to pass the Equality Act, which would codify LGBTQ2S+ rights at the federal level. “None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this Court, and we must fight back in every way possible,” she added.

Americans United for Separation of Church and State president and CEO Rachel Laser noted in a statement that Alito’s line of attack against Roe can also be used against rights like contraception and interracial marriage, but it could also have implications for the growing attack on trans rights. Conservative state lawmakers across the U.S. are currently pushing to restrict trans youth access to medical care and school sports teams in dozens of states, with several such bills being signed into law.

“They will come for contraception,” Laser said. “They will come for marriage equality and LGBTQ rights. They will come for racial justice. They will not be satisfied until they have codified a white Christian nation.”

At the state level, right-wing activists have been targeting abortion rights for years through a number of increasingly restrictive abortion bans, some of which don’t even include exemptions for cases of rape or incest. Dobbs itself came out of one of these early restrictions: a 2018 Mississippi law banning all abortions after 15 weeks, with only narrow exceptions for medical emergencies.

If Roe is overturned, at least 13 states currently have “trigger bans” in place that would almost immediately ban abortion. 

Oliver Haug

Contributing editor Oliver Haug (they/them) is a freelance writer based in the Bay Area, California. Their work focuses on LGBTQ2S+ issues and sexual politics, and has appeared in Bitch, them, Ms and elsewhere.

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