In an unprecedented development, a draft of the U.S. Supreme Court’s upcoming ruling on abortion indicates not only that the court is poised to overturn its long-standing decisions protecting the right to abortion, but that it is also laying the groundwork to overturn landmark pro-LGBTQ decisions.
“LGBTQ people should recognize that we are once again in the crosshairs, and that all of our hard-won protections are under serious threat,” said Shannon Minter, legal director for the National Center for Lesbian Rights.
“If this really is the judgment of a majority of the Supreme Court,” said Jenny Pizer, law and policy director for Lambda Legal, “we have entered an era of arrogant judicial activism unlike anything this country has seen for a hundred years.”
Nan Hunter, a veteran of many legal battles for LGBTQ equality, said the draft would almost certainly unleash “a rush by right-wingers to get a challenge before the court” to overturn Obergefell v. Hodges, the 2015 decision which struck down state bans on marriage for same-sex couples.
The abortion decision draft, first reported by Politico.com Monday night, was confirmed to be authentic by Chief Justice Roberts. But it is dated February, leaving open the possibility that it is not finalized. At least five justices must sign onto the final decision to carry the majority. Votes on some decisions in the past have changed very late in the process. Justices have sometimes voted with a majority view at first, then later changed their vote after reading the majority’s proposed decision. Also in the past, attempts to report the outcome of cases before the decisions were released have turned out to be wrong.
But most legal analysts Monday night said the leak represents a dramatic departure from the court’s efforts to avoid being influenced by political pressure.
“We hold that Roe and Casey must be overruled,” states the draft decision in Dobbs v. Jackson, referring to Roe v. Wade and Planned Parenthood v. Casey.
Roe, in 1973, said there is an implied right to privacy and liberty guaranteed by the Constitution that covers the right to choose an abortion. Casey, in 1992, said that states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden to women and other people assigned female at birth who seek an abortion.
In language especially troubling to LGBTQ legal activists, the leaked draft opinion in Dobbs, apparently penned by Justice Samuel Alito, states, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the due-process clause of the 14th Amendment. According to Alito, the only implicit rights the 14th Amendment due-process clause protects must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Alito’s draft says abortion is not one of those rights and, in language reminiscent of a 1986 decision that allowed states to ban same-sex sexual relations, he notes that three-quarters of the states made abortion a crime when the 14th Amendment was adopted. The opinion further echoes the Bowers v. Hardwick decision when it notes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century.
“If our due-process rights to ‘ordered liberty’ are to be limited now to those rights respected by white male landowners wearing wigs and tri-cornered hats, the Constitution will fail utterly to do the job our founders intended it to do,” said Lambda’s Pizer. “And while it’s true that abortion is unique in some ways, its use as a political weapon to drive extreme-right voters is anything but, as state legislatures have proven again and again in recent times with frenzies of anti-LGBTQ bills.”
Alito’s draft also says that abortion is “critically different” and “fundamentally different” from some other rights that have been protected by the 14th Amendment—such as intimate sexual relations, contraception, and marriage—because abortion takes the life of an “unborn human being.”
But activists were not much comforted by that distinction.
Evan Wolfson, a gay legal activist who was a key player in the legal and political battle for marriage equality, said Alito “leans on the distinctiveness of abortion and doesn’t necessarily go further, though we know he would like to.”
Nan Hunter was more blunt: “Justice Alito badly wants to overrule Obergefell. What this opinion tells us is that he doesn’t have the votes to do so. If there were three other justices—besides him and Thomas—willing to end same-sex marriage, that would have been part of this decision.”
The leaking of the draft has stirred almost as much controversy as the 98-page draft decision itself. The U.S. Supreme Court has a long-standing protocol of not signaling to the public how its decisions are developing. The assumed motivation behind this tradition is to prevent outside politics from putting pressure on the court’s legal analysis and reasoning. Some legal commentators Monday night were characterizing this leak as a blatant attempt to play politics with the final formulation of the court’s abortion opinion. But the pressure could have come from either side–from Alito, attempting to discourage any justice from abandoning his politically aggressive opinion, or from a pro-choice justice hoping public pressure would rattle any majority justice who was concerned about the far-reaching consequences of the opinion.
“That someone leaked this opinion—violating the court’s most sacrosanct rule of confidentiality—speaks volumes about how extreme and dangerous much of the court’s jurisprudence has become,” said NCLR’s Minter. “We don’t know if this will be the final decision, but it is shocking to read this assault on an established, fundamental right.”
The case in question is Dobbs v. Jackson, 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. Most observers following the case and the court’s oral argument have predicted the Supreme Court majority would likely overturn Roe and Casey. But nearly everyone expected the decision to be released in late June, when the court typically releases its most controversial decisions.
During oral arguments on December 1, the court discussed the implications of this case on two major LGBTQ decisions: Lawrence v. Texas and Obergefell v. Hodges. Lawrence ruled that states could not ban sexual relations between same-sex couples; Obergefell ruled that states could not ban same-sex couples from marrying.
“A court that would issue an opinion like this—if it does—is a court that has abandoned any pretense of protecting individual freedom,” said NCLR’s Minter. “We have become too accustomed to counting on the courts for protection, and we must realize that the days when we could safely do so are past. Our hope lies in joining forces with others who are fighting to protect democracy and the rule of law, and to prevent our country from sliding into the same authoritarianism that is rising across the globe.”
“Whether or not this draft makes it into a majority opinion, and whether or not it later gets invoked in assaults on other rights, it’s already a fire bell in the night,” said Evan Wolfson, adding that it underscores “the importance of voting out the Republicans who have conspired, lied, and court-packed to get our country to this ugly, divisive, corrosive moment.”
“The cure,” said Wolfson, “is to vote in representatives who will defend Americans’ rights and our constitutional democracy itself.”