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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