In a ruling that one legal activist said will put LGBTQ rights "on the chopping block," the U.S. Supreme Court Friday ruled 6-3 that the U.S. Constitution "does not prohibit" states from banning abortion.
The decision came in Dobbs v. Jackson Women's Health Organization, a case in which an abortion clinic challenged a new law in Mississippi that banned abortion at any time after 15 weeks, unless there is a medical emergency or severe fetal abnormality. It overturns 50 years of precedent established by Roe v. Wade, which guaranteed the right to an abortion.
A concurring opinion from Justice Clarence Thomas underscores that alarm for LGBTQ people. In it, Thomas urges the court to "reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." Lawrence v. Texas struck down state bans against same-sex sexual relations; Obergefell v. Hodges struck state bans against marriage for same-sex couples; and Griswold v. Connecticut struck bans against couples using contraceptives.
"As Justice Thomas's concurrence makes clear, we must face the reality that the precedents that have transformed the place of LGBTQ people in our society are now in the crosshairs of this reactionary court, which has no regard for precedent and no commitment to protecting civil liberties," said Shannon Minter, a trans man who is legal director for the National Center for Lesbian Rights. "We are on notice that our rights are on the chopping block, and we should not waste a moment in mobilizing political support. If we cannot rely on the Supreme Court, we must turn to our local, state, and federal representatives to secure fundamental freedoms through legislation. We are witnessing a full-scale assault on the rights of women and LGBTQ people, and the moment to act is now."
President Joe Biden was critical of the June 24 decision in remarks made Friday morning.
"It's a sad day for the court and the country," he said, adding that this is the first time the court has "expressly taken away" a right.
Biden acknowledged that Congress does not have the votes now to codify Roe through a law. He encouraged people to vote in the November midterms and "elect people who will protect this right."
"This fall Roe is on the ballot," he said.
Biden, who served on the Senate Judiciary Committee when he was a senator, said he believed Roe was correctly decided.
In language that is overtly dismissive of concern for how the decision will impact other rights, Justice Samuel Alito, writing for the majority, stated that these considerations are "too much" and lack "any serious discussion."
"These attempts to justify abortion through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much," wrote Alito, who was joined on the majority opinion by Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts did not sign onto Alito's decision but issued his own opinion, concurring in the judgment.
Alito did little to quell concern that the decision will impact these other rights.
He says the majority has stated unequivocally that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion," adding that abortion involves taking a "potential life," while the decisions in the other cases do not. But then he adds this:
"Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence," wrote Alito.
Given that the Dobbs decision analysis of stare decisis (respect for precedent) overturns the 50-year-old Roe v. Wade decision, it is uncertain the court's conservative majority will respect precedent in other cases, particularly LGBTQ ones. Obergefell v. Hodges, striking state bans on same-sex marriage, was issued only seven years ago. Lawrence v. Texas, striking state bans on consensual sex between same-sex adults, was issued only 19 years ago.
Adding to that concern, Thomas' concurring opinion urges the court "reconsider all of this Court's substantive due process precedents," including Griswold, Lawrence, and Obergefell. He states that the court has "a duty to 'correct the error' established in those precedents...."
Generally, judges and justices are expected to keep pre-conceived ideas of how a case might be decided to themselves. But Kavanaugh appears to abandon that protocol, too. In his concurring opinion, he includes a footnote that says Obergefell "overruled" Baker v. Nelson.
"Much of American society was built around the traditional view of marriage that was upheld in Baker v. Nelson, and that was reflected in laws ranging from tax laws to estate laws to family laws. In Obergefell v. Hodges, the court nonetheless overruled Baker," he wrote.
Jennifer Pizer. Acting chief legal counsel for Lambda Legal Defense and Education Fund, said the court has become an "activist" one.
"This is the most shockingly activist court we have seen in any of our lifetimes," Pizer said, "The arrogantly selective reading of history and disdain for generations of jurisprudence would be bizarre if it weren't so terrifying."
The court did not "overrule" Baker v. Nelson. In Baker v. Nelson, a 1972 appeal, the Supreme Court did not issue an opinion. It summarily dismissed a gay couple's appeal to recognize same-sex marriage.
In the majority opinion June 24 in Dobbs, the court does overturn two major precedents: Roe v. Wade and Planned Parenthood v. Casey. Roe v. Wade, in 1973, said the Constitution implies that citizens have a right to privacy and liberty and that those rights cover the right to choose an abortion. Planned Parenthood v. Casey, in 1992, said states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden to women who seek an abortion.
In his opinion concurring in the judgment of the majority, Roberts wrote that he sees "no sound basis for questioning the adequacy" of 15 weeks for a woman to obtain an abortion. He chose not to sign onto Alito's opinion apparently because, as he said, "its dramatic and consequential ruling is unnecessary to decide the case before us."
"The court's decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases," Roberts wrote. "A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."
During oral argument December 1, the justices discussed the implications for the Dobbs decision on Lawrence and Obergefell.
Pizer said the decision invites states to make their own rules on abortion access.
"Seeing this carte blanche invitation to legislatures to eliminate the freedom to make one's own decisions about one's own body and life, especially following yesterday's absurd decision elevating gun rights over public safety," said Pizer, "offers a picture of American society potentially transformed in a horrifying direction."
In the gun ruling, the court, in a 6-3 decision, struck down a New York state law requiring people to show a special need for self-defense to carry guns outside their homes.
Swift condemnations
Reaction was immediate and angry from LGBTQ leaders and organizations.
In California, lesbian state Senate President pro Tempore Toni Atkins (D-San Diego), expressed her condemnation of the ruling.
"I share the searing fury felt by the majority of Americans who are angry and scared for what this Supreme Court decision means — for the lives of their daughters, granddaughters, and loved ones," Atkins stated. "For the lives of everyone who will be left without options as a result of this regressive decision. With this ruling, the Supreme Court has turned its back on safety and equality. But in California, those values remain firmly rooted. Here, pregnant individuals and their families will always be entitled to dignity, understanding, and reproductive choice."
Gay state Senator Scott Wiener (D-San Francisco) called it "a dark day."
"In an unprecedented move, the Supreme Court has obliterated a core constitutional right: The right to make major decisions about one's own body and life," he stated. "This horrific decision — effectively removing people's agency over whether and when to start or grow a family — is a disaster for millions across the country. The ruling is also a major step back to an era when government and religion controlled the most intimate aspects of people's lives. The court's action will have serious ramifications beyond abortion, particularly for LGBTQ people."
California's Democratic leaders have already pledged to broaden abortion access. Legislative proposals started being developed after the leaked draft of Alito's ruling.
California Governor Gavin Newsom recently proposed more funds for reproductive health facilities.
"California will not stand idly by as extremists roll back our basic constitutional rights; we're going to fight like hell, making sure that all women — not just those in California — know that this state continues to recognize and protect their fundamental rights," he stated in a May news release announcing $125 million to further bolster the state's health care infrastructure.
Newsom, Atkins, and Assembly Speaker Anthony Rendon (D-Los Angeles) earlier proposed amending the state Constitution to protect abortion access.
On Friday, Newsom and Oregon Governor Kate Brown (D), a bisexual woman, and Governor Jay Inslee (D) of Washington state issued a Multi-State Commitment to defend access to reproductive health care, including abortion and contraceptives, and committed to protecting patients and doctors against efforts by other states to export their abortion bans to the three states.
"This Multi-State Commitment affirms the governors' commitment in response to the U.S. Supreme Court's unprecedented decision to strip away a constitutional right that has been in place for half a century, leaving abortion regulation to the states," a statement from Newsom's office read. "The sweeping decision means that for patients in more than half the country, home to 33.6 million women, abortion care is illegal or inaccessible."
A copy of the Multi-State Commitment to Reproductive Freedom can be found here.
Gay San Francisco District 6 Supervisor Matt Dorsey pointed out that June is when the high court has issued opinions favorable to the LGBTQ opinion, such as marriage equality in 2015. But not this year.
"Today's Supreme Court ruling overturning Roe v. Wade rips away the right of women to make health care choices over their own bodies," Dorsey stated. "The ruling plunges women back to a dark time in our history that we once couldn't have imagined, but which became possible with a 2016 election that would solidify a far-right majority on our U.S. Supreme Court. Reversing this constitutional right that has stood for nearly 50 years has grave consequences for women and many others across our nation."
Dorsey also referenced Thomas's concurring opinion.
"Associate Justice Clarence Thomas made specific reference to a need to 'correct the error' of other prior decisions, including those establishing marriage equality rights for same-sex couples in California and the United States," he added.
Adrian Shanker, a gay man who's the executive director of the Spahr Center in Marin County, told the Bay Area Reporter that LGBTQ people should be upset for a couple of reasons.
"It's important that LGBTQ people aren't outraged just because of what the ruling may mean for marriage equality," he said in a phone interview. "They should be outraged about what it means for bodily autonomy."
He also pointed to language some are using that disrespects trans and other people who may need abortions and reproductive health care.
"People of all genders can and do need abortions," he said, adding that when speakers talk about "a woman's right to choose" they are "adding insult to injury by using language that excludes" other pregnant people's "experience as well."
The Spahr Center is Marin County's "nonprofit community agency devoted to serving, supporting, and empowering Marin's LGBTQ+ community and everyone in the county living with and affected by HIV," its website states.
"We will continue to advocate for bodily autonomy," Shanker said of the center.
San Francisco-based National Center for Lesbian Rights Executive Director Imani Rupert-Gordon said the justices' decision has resulted in a right being stripped away.
"It is impossible to overstate how dangerous this is. The U.S. Supreme Court has done a complete about-face and held that individuals do not have the right to decide for themselves whether or not to continue a pregnancy," stated Rupert-Gordon. "The majority opinion states that liberty, supposedly guaranteed to us all by the Constitution, is defined by an era when women of any race could not vote, hold property, or legally exist apart from their husbands, and when the citizenship rights of Black women and other women of color were nonexistent.
"There is hardly a more egregious assault on individual liberty than forcing someone to be pregnant against their will," she added. "For the first time, the Supreme Court has reversed a long-standing precedent to take away — not expand — liberty rights under the Constitution."
Lambda Legal Defense and Education Fund was stark in its reaction, stating that "people will die."
"The damage wrought by today's ruling is incalculable. As we warned when a draft was leaked in May, people will die as a result of this ruling," stated Pizer. "More than half the states are already poised to ban or at least severely restrict abortion access, forcing patients to travel hundreds of miles out of state or to continue pregnancies against their will. Officials in some states have even suggested they will move to prevent pregnant people from leaving. We are seeing the threat of a radical, totalitarian state more and more resembling Gilead of 'The Handmaid's Tale.' If we want to retain any shred of gender equality and personal freedom, every one of us must raise our voices and engage."
Updated, 6/24/22: This article has been updated with additional information from the opinion and comments.
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