The Supreme Court’s ruling overturning a constitutional right to abortion sent fear through the LGBTQ community Friday, after the release of the decision set out potential targets: Supreme Court cases legalizing same-sex intimacy and marriage.
“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Thomas said in his concurring opinion.
“We have a duty to ‘correct the error’ established in those precedents.”
The 2015 Obergefell decision guaranteed same-sex couples the right to marriage; the 2003 Lawrence decision overturned a Texas law which made gay sex criminal. The 1965 Griswold decision allowed married couples to use contraceptives.
As the decision was announced Friday, LGBTQ Americans attempted to wrap their heads around the idea that rulings that have fundamentally shaped their lives and livelihoods could vanish. After decades of fighting for the same protections and rights available to other Americans, and seeing their rights only belatedly expand in landmark Supreme Court cases, the prospect of returning to a time before those protections were available to them was unfathomable.
“Thomas’ dissent is a blaring red alert for the LGBTQ community and for all Americans. 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,” said Sarah Kate Ellis, president and CEO of GLAAD, an LGBTQ advocacy organization. “But that’s exactly what Thomas is threatening to do to the country.”
Alyssa Kloss, a 24-year-old bisexual woman from Bismarck, N.D., said she was scrolling through her phone when she saw the news. Tears welled in her eyes. She immediately reached out to her partner, who is nonbinary, with the news.
“I feel overwhelmed,” Kloss said. “I feel like this really opens the door to knock down all the rights that our fore-sisters and fore-siblings have fought for since America’s conception.”
In the abortion ruling, Justice Samuel Alito argued any rights that are “unenumerated” — or not laid out — in the Constitution can’t be recognized as a fundamental right in the country unless they are “deeply rooted in this Nation’s history and tradition.”
Abortion, he argued, is not.
But other legal experts say the Founding Fathers drew up a Constitution as a general framework for the direction of the country, and with the intention that it would evolve with its people, conferring their rights.
“The notion that courts should try to put themselves into the tri-quartered hats and wigs of our Founding Fathers in order to determine whether the rights would be recognized during the due process guarantee at that time is contrary to the way our due process jurisprudence has worked for generations,” said Camilla Taylor, director of constitutional litigation for Lambda Legal, an LGBTQ civil rights organization.
“I’d like to emphasize the damage it will do to people who will no longer be able to get abortions and most specifically Black and brown women and transgender men who already face huge challenges in obtaining any form of health care,” Taylor said.
“It’s not an exaggeration to say people will die as a result of this decision. They will die because they are forced to give birth and they will die because they will be forced to take desperate measures to avoid getting pregnant.”
Despite Thomas’s explicit references to reexamining same sex marriage and intimacy cases, the demise of such rulings is not set in stone.
Alito said in the decision that the arguments backing up the overturn of Roe v. Wade don’t necessarily apply to same-sex cases, saying at one point that such assumptions seemed “designed to stoke unfounded fear that our decision will imperil those other rights.”
The case for same-sex marriage, for example, relies on the notion that it is a fundamental right and liberty, with cases dating from the early 1900s outlining Americans’ right to marry. It also relies on equal-protection arguments, which are less in dispute in the justice’s opinion than due process.
“Equal-protection arguments are not whether something is historically based or not, they’re about the here and now and whether we can all be — whether it’s just wrong to exclude people from a basic protection and unfair discrimination,” said Mary Bonauto, who was one of three attorneys arguing for marriage rights in the Obergefell case. She serves as the civil rights project director at GLAAD.
She said the justice’s argument in this abortion case “invites a contrived approach, saying ‘Well, was there same-sex marriage in 1790?’”
LGBTQ Americans are not unaccustomed to the prospect of increased restrictions on their rights. Across the country, states have been pushing laws that restrict the health-care rights of these individuals, particularly transgender Americans.
But countering such rollbacks was the strong foundation of court cases that protected both same-sex marriage and intimacy.
Rob Hill, the Human Rights Campaign’s Mississippi executive director, said Roe falling and bills like Florida’s measure to limit discussions in schools about sexual orientation and gender identity — labeled by critics as the “Don’t Say Gay” bill — may embolden Republican lawmakers to ramp up their efforts.
“I don’t think this decision immediately impacts decisions like Obergefell, but it could give license to legislators that have proven to be anti-LGBTQ+ to go even further in states like Mississippi,” Hill said.
Hill and his partner, Ryan McElveen, have been together for 14 years. The two have planned to marry but have never been in a rush. That may change.
“While we’re not married, decisions like the one coming down make us feel like hastening that and getting married in case sometime in the future we may lose that opportunity or right,” he said. “A right that we’ve had for [more than] five years and taken for granted could potentially go away at some point.”
Kloss is terrified that the court’s decision could affect her and her partner’s ability to raise a family together. Her partner was born male but often dresses feminine, and goes by the pronouns they/them.
“I’m very afraid of people thinking that our child is in danger because we’re queer and people wanting to take away our child. I’m very afraid of that when that time comes,” she said.
Kloss said leaving the country is not off the table for her and her partner should the same-sex cases be overturned.
“We’re finding solace in knowing that I guess, if we have to leave and go to a different place and build a new life somewhere else, then that’s what we have to do,” she said.
Mykell Price, 37, learned about the fall of Roe in a call from a friend while he was at a breakfast meeting. He had read the similar draft ruling that leaked in early May. He had felt the fears as it rippled across the LGBTQ community over what it could mean for them — but none of that lessened the blow.
“I asked him, was he serious and was he sure? In that moment I realized that I underestimated the reality that there are numerous people who believe that individuals should not make decisions about their own access to health care, particularly abortion,” Price said.
Access to health care is a topic of particular significance to Price. Price was assigned female at birth and spent years of his adolescence and early adulthood understanding his identity and undergoing the social and then medical transitions to becoming a man. He said he was also raped multiple times before college, when he was still able to get pregnant.
It’s a sentiment felt among many in the LGBTQ community — that preventing access to abortion and preventing gender-affirming care to patients, as has been pushed in many states, represent the same sort of governmental overreach on historically marginalized groups.
This year, Price was nominated “Mister Hotter than July” in Detroit’s annual Black pride parade. He was the first transgender man to win the award. As he moves around Detroit, coming to and from his job in human relations, he sees signs everywhere of progress — of businesses promoting Pride Month and little rainbows painted on sidewalks.
“Some of those things have led me to believe that as a nation we were much further along,” he said. “I was wrong.”
Casey Parks and Sarah Fowler contributed to this report.