Will LGBT+ Rights Be Affected if Roe v. Wade Is Overturned?

by Kaine Spitak

Note: This piece was written before the news that Roe v. Wade had been overturned on Friday, June 24, 2022.

Introduction / Personal Background

After the news of the leaked Dobbs decision overturning Roe v. Wade and Planned Parenthood v. Casey came out, I saw a plethora of false claims about the nature of the decision and what effects it could have on law and policy outside of the context of abortion. In particular, I saw many pundits speculate that this monumental expansion of human rights protections for the unborn is a threat to the civil rights of other groups — specifically LGBT people — which have been under fire by legislatures in various states.

These claims worried me greatly as someone who is both a member of the LGBT community and passionately pro-life. Further, I am anti-abortion for some of the very same reasons that I have been a long-time advocate for LGBT rights: I believe that all human beings deserve equality and that marginalized communities should not be exploited and harmed for profit. A free society does not come from state-sanctioned violence against marginalized persons, born or unborn.

Over the past few years I’ve had the opportunity to volunteer with the team at Rehumanize International; though they don’t take particular stances on LGBT rights (outside of all human beings’ right to live free from violence, regardless of identity), I am grateful that they are a pro-life organization that welcomes people from all backgrounds to stand for human rights, including LGBT-identified people like myself. You may have even seen me at a recent rally or on social media with my “Queer, Atheist, Pro-Life” sign; I think it is important to represent the diversity that exists within this movement so that we can build the broad coalition necessary to build a genuine culture of life. I am also a law student and the president of my university’s LGBT Law Society. Once the leak came out, I decided that I wanted to take my legal training and experience I have gained to read the leaked opinion and determine, truthfully, what the language surrounding overturning Roe and Casey may mean for the future of LGBT rights and protections.

Though I had some concerns about the fate of LGBT rights due to the initial backlash after the draft opinion was leaked, these fears were assuaged when I actually read the document for myself. I now believe that this is just another example of the abortion industrial complex targeting and fearmongering marginalized populations in order to advance their profit-driven agenda. Claims that the draft opinion will threaten LGBT rights are entirely unfounded and blatantly untrue.

Dismantling the systemic oppression of abortion must also include deconstructing the 50+ years of pervasive misinformation developed by the abortion industry to target the most vulnerable among us.

This article is, to the best of my ability, an objective interpretation of the leaked Dobbs opinion, a briefing of Justice Alito’s philosophy of interpreting questions of constitutional law, a brief overview of the most commonly-referenced landmark LGBT rights cases, and a criticism of legal professionals, news outlets, and the abortion industrial complex’s attempt at co-opting valid human rights movements to further exploit, intimidate, and silence marginalized communities.

Actual Text of the Dobbs Decision Distinguishing Roe and Casey from other rights, specifically Obergefell and Lawrence

The leaked opinion is a lengthy 67 pages; it thoroughly and meticulously examines the history of abortion, the flawed legal reasoning behind Roe and Casey, the arguments of counsel in the current case, and a constitutional review of the Mississippi statute banning abortion after 15 weeks.

Headlines from major media outlets, members of the legal profession, and Obergefell himself, the original plaintiff in the landmark case that established a constitutional right to same-sex marriage, have all painted a future of doom and despair for the LGBT community in the wake of Alito’s opinion.

While these individuals may express genuine concern, after careful review of the Dobbs decision, it is clear that these fears that Alito is “setting his sights” on LGBT rights cannot be validated anywhere within the text of the leaked opinion. Instead, Alito expounds great effort to distinguish abortion from other privacy-based rights that have been found in the Constitution.

Before diving into the actual text of the leaked Dobbs decision, it is important that we first explain the basic methodology courts use to analyze and interpret questions of law.

When courts analyze an issue of law, most typically in cases concerning the Constitution, it is common to compare or “distinguish” the present case (referred to as the “instant case”) from other previous cases and their holdings (prior cases are referred to as “precedent”).

Distinguishing cases from one another is important because courts use it to either validate or reverse the case that is in front of them. This practice has historical roots in common law, and, as a guideline, it means cases with similar facts should produce the same legal results.

Generally, courts must adhere to the holdings of prior precedent due to a legal principle known as stare decisis. However, courts may overturn precedent when prior decisions are “unworkable or are badly reasoned.” This is exceptionally true concerning constitutional cases, and overturning prior precedent has been the cornerstone of the expansion of human rights.

In the leaked opinion, Alito’s discussion of stare decisis refers to Obergefell (right to same-sex marriage) and Lawrence (right to same-sex intimacy) as landmark cases to justify overturning Roe:

“On many other occasions, this Court has overruled important constitutional decisions. [Footnote citing a 1.5-page-long list of case law, including Obergefell and Lawrence]. Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.” [p. 37-39]

Alito then summarizes his findings in favor of overturning Roe and Casey in the following:

“In this case, five factors weigh strongly in favor of overturning Roe and Casey: 1) the nature of their error, 2) the quality of their reasoning, 3) the ‘workability’ of the rules they imposed on the country, 4) their disruptive effect on other areas of the law, and 5) the absence of concrete reliance.” [Id. at 39]

These factors encompass Justice Alito’s extensive examination of the Dobbs case; however, the last factor, an absence of concrete reliance, entirely distinguishes abortion from other privacy-based rights (including Obergefell and Lawrence).

In other words, Alito is saying: not only is there no right to abortion for all of these reasons (the other four factors), but there is no right to abortion because abortion is entirely different from all of the privacy-based rights that we have established. This shows a clear difference in the way the majority of the court considers the issue of abortion as distinct from LGBT civil rights.

This is the quote that many pro-abortion individuals have pulled from the leaked opinion in order to fearmonger that LGBT rights and other privacy-based rights are at risk:

“Nor does the right to obtain an abortion have any basis in precedent. Casey relied on cases involving [extensive list: the right to marry a person of a different race, the right to marry while in prison, the right to contraceptives, the right to not be sterilized without consent, etc.].
“Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas [right to engage in private, consensual sexual acts] and Obergefell v. Hodges, [right to marry a person of the same sex]. These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.” [p. 31-32]

Here, Alito is saying two things: 1) trying to justify upholding past Court decisions (Roe v. Wade) with rulings that occurred afterward (Obergefell and Lawrence) is not sound legal reasoning and fails as an argument; and 2) abortion cannot be justified in the same manner as LGBT rights and other privacy rights.

Alito then elaborates on this second item by continuing:

“Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like… None of these rights has any claim to being deeply rooted in history.” [p. 32]

This sentence is clearly meant to critique the use of an unsound interpretation of law to find fundamental rights in illegal drug use and sex work, not to undermine other already established privacy-based rights. Abortion cannot be justified by cases concerning LGBT rights or other privacy rights, because abortion is not the same thing and fails the legal analysis that other privacy rights have satisfied (being “rooted in history” and precedent).

Conveniently, when cited by others in news articles or on social media platforms, the above quote stops before the following paragraph. Here, Alito distinguishes abortion from those privacy-based rights.

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” [Citing to Roe, 410 U.S., at 159 (abortion is “inherently different”) and Casey, 505 U.S., at 852 (abortion is a “unique act”)].
None of the other decisions cited by Roe and Casey involved the critical moral question of abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right [the right to abortion] does not undermine them [the decisions that established other privacy-based rights] in any way.” [p. 32, emphasis added]

Instead of threatening or putting LGBT and other privacy rights “on the chopping block,” Justice Alito again cites an extensive two-page-long footnote that includes cases like Obergefell and Lawrence as examples of instances when the Court “overruled important constitutional decisions.” [p. 37-39] In this section, Justice Alito is clearly using the extensive history of finding privacy-based rights as justification for overruling Roe and Casey because no other privacy-based right concerns the taking of another human life.

Going even further, Justice Alito then addresses the contentions by the Solicitor General that LGBT and other privacy-based rights will be threatened by the Court’s overturning of Roe and Casey:

“Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights (citing to Obergefell, Lawrence, and Griswold [the right to contraceptives]) . . . “That is not correct for reasons we have already discussed. As even the plurality in Casey recognized, “abortion is a unique act,” because it terminates “life or potential life.’” [p. 62]

And lest anyone accuse Justice Alito as not being thorough, he then explicitly states that there should be no question of the implication his holding will have on other privacy rights:

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” [p. 62]

Alito’s background as a textualist and anti-LGBT history

As a result of the leaked opinion, it is currently a laborious task to wade through all the misleading media attempts at analyzing Justice Alito’s past decisions and legal reasonings to further manufacture a dismal prophecy for privacy-based rights; however, the reality is that Justice Alito has continued to apply a relatively consistent philosophical approach to constitutional interpretation, and, outside of the findings of the opinion, his personal philosophies of law are in no way determinative of the future holdings of the Supreme Court.

Considered one of the conservative justices on the bench, Justice Alito is a typical textualist and originalist in his approach to constitutional interpretation. He is notorious for approaching legal questions on a case-by-case basis, and this, accompanied by quasi-libertarian values, has resulted in unpredictable previous rulings compared to his conservative colleagues.

To be a “textualist” or an “originalist” is a method of explaining one’s philosophical approach to questions of law. Broken down into their most basic concepts, a textualist is someone who believes the actual writing of the text (and not its hidden meaning “between the lines”) should take priority when interpreting the law. An originalist is someone who considers the original intent of the author (usually, for constitutional purposes, the “Framers” of the Constitution) and the original understanding of the text at the time it was written to be extremely important when expanding the interpretation of the text to include ideas that are not explicitly written in the law.

Though Justice Alito was not sitting on the bench when Lawrence was decided, he was one of four justices that dissented in Obergefell. His reasoning for finding no right to same-sex marriage is summarized early in his dissenting opinion:

“The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.” [p. 96-97]

Though a short dissent, Justice Alito bases these findings consistently in line with textualist and originalist beliefs and precedent from Glucksberg (finding no right to physician-assisted suicide), writing that “‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’” [p. 97]

This is a positioning that reflects standard textualist and originalist thinking. In other words, according to this line of thinking, the Constitution does not mention same-sex marriage, the founding fathers likely did not intend to include same-sex marriage as a right, and there is no history or tradition supporting same-sex marriage, so the Court is obligated to find that there is no right to same-sex marriage, even if they personally support it.

To summarize Justice Alito’s positioning differently, he does not believe that the Court should create laws or policy, even if they may be good for society as a whole, because this is the job of the legislature (or “required by democratic process”). When it comes to the Constitution, the only role of the Supreme Court (based on this line of philosophy) is to interpret its meaning based on what it actually says and the intent of the founding fathers at the time it was written. If a right cannot be found in either of those standards, and our laws have not historically recognized it, then it does not exist.

There is no “exact science” when it comes to an individual justice’s positioning on the bench, but, generally speaking, Justice Alito has voted with the majority in 80% of all Supreme Court cases decided since 2011. His prior voting on the Supreme Court has left him squarely in the middle — he was in the majority more frequently than four other justices (Sotomayor, Kagan, Breyer, and Thomas) and in the majority less frequently than four other justices as well (Roberts, Kavanaugh, Barrett, Gorsuch).