Lawyers turn to Supreme Court abortion cases


With the new term of the United States Supreme Court underway, for the first time in years, judges will not have to consider a major case with a specific impact on LGBTQ rights, which lawyers say , will cause them to focus their attention on high-profile cases that challenge a woman’s right to access abortion.

Dobbs v. Jackson Women’s Health Organization, which will determine the constitutionality of Mississippi’s law banning abortion after 15 years, is at the top of the court’s watch list, which now has 6 to 3 conservative majorities following appointments under the former President Trump. weeks and is widely seen as a direct challenge to the long-standing precedent set by Roe v. Wade guaranteeing a right to abortion. Texas law prohibiting all abortions after six weeks, which the Supreme Court has allowed to come into effect while litigation against it continues, is still pending in lower courts, but will likely reach the High Court soon.

For many LGBTQ lawyers, abortion cases are important because they say the outcome could have a direct impact on the legal precedents underlying major Supreme Court rulings in favor, including the 2003 decision of Lawrence v. . Texas, which overturned state bans on sodomy, and the 2015 decision of Obergefell v. Hodges in support of same-sex marriage nationwide.

Camilla Taylor, director of constitutional litigation for Lambda Legal, said the outcome of abortion cases is crucial not only because LGBTQ people need access to abortion.

“Equally important, there are many ways in which the historical precedents we have achieved that defend the rights of LGBT people build on a substantive due process precedent that includes Roe v. Wade, and other cases dealing with reproductive health, “Taylor said.” So if Roe vs. Wade crumbles, then the foundation upon which our own cases crumbles as well. “

As such, a coalition of LGBTQ legal groups, including the National Center for Lesbian Rights, the National Center for Transgender Equality and Equality California, was among those who filed a friend of the court brief in September claiming that the law of Mississippi is unconstitutional. .

One of the main arguments is that denial of access to abortion is a form of sex discrimination, just as the Supreme Court determined last year in Bostock v. Clayton County that anti-LGBTQ discrimination is a form of sex discrimination, which is illegal under the Civil Rights Act. from 1964.

“By the same logic, laws that restrict abortion also facial discrimination based on gender,” says the brief, “Like being LGBTQ, pregnancy is a characteristic based on gender; it is “inextricably linked” to the sex of an individual. Accordingly, laws that require a pregnant woman to bear a child are necessarily discriminatory on the basis of sex, as is a law prohibiting a reproductive medical procedure reserved for men.

It is true that Roe v. Wade and the Supreme Court’s ruling for LGBTQ were based on the principles of due process and equal protection under the 5th and 14th Amendments to the U.S. Constitution. But not all legal experts agree that LGBTQ rights are at stake depending on the outcome of the abortion litigation.

Dale Carpenter, a conservative law professor at Southern Methodist University (SMU) Dedman School of Law who has written in support of LGBTQ rights, said the Supreme Court “would likely write a more restrictive opinion, if it even quashed Roe.” , but won do not pronounce a radical decision “which affects and destroys all rights not listed”.

“Obergefell is built on the fundamental right to marry,” Carpenter said. “There is no way the Supreme Court will say that there is no fundamental right to marriage. The doctrine on which Obergefell is based is much stronger than abortion rights. The basic doctrine underlying Obergefell has never been seriously contested; abortion rights have existed for 50 years.

Other key differences between abortion rights and same-sex marriage, Carpenter said, are a defensible state interest in protecting fetal life and trust interests in the case of marriage rights, given that thousands of same-sex couples got married as a result of the Obergefell. decision.

But what about Lawrence v. Texas, which was both this LGBTQ rights decision and Roe v. Wade decided at least in part to find an unenumerated right to privacy in the constitution? Carpenter said that a Supreme Court ruling overturning a right to privacy would mean overturning a nearly 60-year precedent that began with the 1965 ruling in Griswold v. Connecticut, which overturned a state ban on contraceptives.

“There isn’t even a single case in the case, to my knowledge, on the anti-abortion side that supports this,” Carpenter said.

Carpenter concluded with an ironic jab: “By the way, LGBT rights advocates who now say these LGBT rights decisions are in danger will be the same as those who say after Roe is overturned that these decisions are not. affected. “

Indeed, the Supreme Court, in its current Conservative composition 6-3, has had the opportunity to hear an Indiana birth certificate case, Box v. Henderson, who directly challenged the Obergefell marriage decision, but refused to take up the matter. No state is close to re-criminalizing sex for same-sex couples, which in 2021 would be widely viewed as a human rights violation.

But legal advocates of the LGBTQ community do not limit the relationship between abortion and LGBTQ rights to legal principles. Additionally, the identification of solidarity with another besieged minority group, namely women seeking access to abortion, and the need among certain members of the LGBTQ community – lesbian and bisexual women, transgender men and women. non-binary people – to have access to abortion.

Shannon Minter, legal director of the National Center for Lesbian Rights, echoed the sentiment that LGBTQ lawyers focus on abortion cases, but cited “the overlap between reproductive rights and the justice movement and LGBTQ movements “.

“What we are seeing is that the primary impact of this case on our community is very direct,” Minter said. “It’s extremely direct. The possibility of getting abortions is of great importance to women in our community, as well as to transgender men and non-binary people.

Minter cited data showing that more than 80% of bisexual women will experience pregnancy in their lifetime and said that LGBTQ women “are much more likely to have unwanted pregnancies as a result of sexual violence, which is very painful, but it is a reality for our community. . “

Young lesbian adults and adolescent girls are particularly at risk of unwanted pregnancy, Minter added, because there is still “so much stigma and discrimination that they have tried to somehow hide their sexual orientation and prove that” they’re straight when they’re not, so they actually have high rates of unprotected sex.

Funding of religious schools, gun control, Obamacare on file

Abortion cases aren’t the only litigation on the radar for LGBTQ lawyers. Also on the list of cases that will determine whether Maine religious schools have access to public funds, the legality of New York State’s gun regulations and disparate impact claims under Obamacare. .

Taylor stated that the CVS Pharmacy v. Doe in the Supreme Court, which has been brought by people living with HIV / AIDS, will determine whether disparate impact claims are recognizable in the context of disabilities under the Affordable Care Act.

“It’s really important for people living with HIV and other people with disabilities,” Taylor said. “It could hurt a lot. “

Pleadings in the Dobbs case are scheduled to take place in the Supreme Court on December 1.

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