After decades of longing for the U.S. Supreme Court to overturn the Roe v. Wade ruling of 1973, anti-abortion zealots may finally get their wish. The High Court, on December 1, began hearing oral arguments in Dobbs v. Jackson Women’s Health Organization — a case that is examining the constitutionality of a highly restrictive anti-abortion law in Mississippi. If the Court upholds the Mississippi law, overturns Roe and assaults abortion rights, there is every reason to believe that gay rights won’t be far behind.
That is not to say that Dobbs deals with gay rights per se. Dobbs is about abortion specifically, and defenders of the Mississippi law are arguing that the Roe decision was an attack on states’ rights — that the state government in Mississippi, not the federal government, should be able to decide how it governs and regulates abortion. But legal experts, including Laurence Tribe, have pointed out that if the High Court doesn’t respect abortion as a national right, it won’t respect gay liberties as a national right either.
Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, the Supreme Court now has six justices appointed by Republican presidents and only three justices nominated by Democratic presidents. This is the most hard-right Supreme Court in generations, and the Dobbs case is almost certain to end with Roe being overturned — or at the very least, gutted. Even if Chief Justice John Roberts votes with the three Democratic nominees, the end of Roe appears likely.
Overturning Roe will not amount to a national abortion ban, but rather, would allow abortion rights to be decided on a state-by-state basis. So post-Roe, abortion would likely be banned in a long list of red states while remaining legal in blue states like California, Oregon and Massachusetts. And that would affect gay rights because the Christian Right and its lawyers would argue that if a 48-year-old precedent like Roe can be overturned, there is no reason why gay rights rulings should not be overturned as well.
In fact, Tribe, co-founder of the American Constitution Society, specifically discussed gay rights during a December 1 appearance on Lawrence O’Donnell’s MSNBC show, explaining why the end of Roe will lead to a variety of assaults on civil liberties.
Tribe — whose students, over the years, have ranged from President Barack Obama to U.S. Attorney General Merrick Garland to Chief Justice Roberts — told O’Donnell, “All along, we have expanded rights. Brown v. Broad expanded rights beyond what Plessy had said. Lawrence v. Texas expanded rights for LGBT people. We’ve expanded. But if we do now what the Court is poised to do, it will be the first turnaround. We will have lost our virginity basically. And once we do it this time, it’s going to be a lot easier to do it next time with contraception, with same-sex marriage, with gun rights, for example. Rights that conservatives like, rights that liberals like. It’s always been a matter of expanding rights; this will be the first reversal of that trend.”
Lawrence v. Texas, a 2003 Supreme Court ruling, was a major victory for gay rights because it struck down a sodomy law in Texas as unconstitutional — and by doing so, the Court struck down sodomy laws in other states as well. Hated by the Christian Right, Lawrence was, like Roe, what legal scholars call a right-to-privacy decision. Far-right social conservatives believe there is no right to privacy in the U.S. Constitution, while liberal and progressive groups like the ACLU and People for the American Way — as well as some right-wing libertarians such as former Supreme Court Justice Anthony Kennedy — believe that there is.
The right-to-privacy argument also prevailed in Obergefell v. Hodges, the 2015 High Court ruling that legalized same-sex marriage nationwide. Just as Roe established a national standard for abortion rights, Lawrence and Obergefell set national standards with gay rights — Lawrence for sexual activities, Obergefell for the right of same-sex couples to get married.
If Roe falls, it will give the Christian Right hope that Lawrence and Obergefell can be overturned as well. Post-Roe, the Christian Right argument for overturning those decisions will be along the lines of: “the Court has decided that Roe was wrongly decided in 1973, and that individual states must decide for themselves whether or not to have legal abortion — so why should there be a national standard for gay rights? The High Court has struck down Roe as unconstitutional, and applying that standard, Lawrence and Obergefell must be struck down as well.”
Justice Clarence Thomas, Justice Amy Coney Barrett, Justice Samuel Alito and other social conservatives who are likely to vote to overturn Roe would likely vote to overturn Lawrence and Obergefell as well.
Right-wing jurists, in some cases, can turn out to be highly protective of civil liberties. Anthony Kennedy, a right-wing Ronald Reagan appointee, was fiscally conservative during his decades on the High Court, but he often sided with the late liberal Justice Ruth Bader Ginsburg when it came to abortion and gay rights. The current leaning of the Court, however, is more in the direction of Justice Clarence Thomas and the late Justice Antonin Scalia — that is, Christian Right conservative rather than libertarian/Cato Institute/Reason Magazine conservative.
If Roe v. Wade is overturned, the Christian Right assault on civil liberties will not end with abortion. And gay rights, from sexual freedom to marital rights, will be a prime candidate for the fundamentalist chopping block.
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