Op-Ed: They Are Coming For You Next

It was not long ago that the LGBTQ community thought that it was making headway in gaining access to the rights enjoyed by their cisgender, straight counterparts. We had marriage equality. Trans visibility and representation was on the rise. LGBTQ people were being elected to office, and even running for president. 

All of that progress is still there, but for how long?

It is important that we pay attention to freedoms that are being taken away from other groups of marginalized people around us in order to read the tea leaves about what is likely to happen to us next. We also have to shake ourselves awake and realize that we live in a country that has typically moved forward and not backwards when it comes to human rights. But countries fall and regress all the time, and that may be what is happening in America. 

The 2022 Supreme Court decision to overturn Roe v. Wade set off a series of events that has emboldened some states to ban access to abortion and limit bodily autonomy. This decision may have paved the way for similar, dire consequences, primarily for the trans community. Because our Supreme Court has demonstrated that they have no regard for precedent (a pretty important facet of the judicial system) the door is now open for challenges to said precedent that had historically failed. In deciding that access to certain “objectionable”  kinds of health care, like abortion, can be constitutionally blocked, the Court has demonstrated that there may be no limit to imposing similar restrictions on other types of medical treatments and procedures. 

Gender-affirming health care is a great example of health care that may not be constitutionally protected by this Court if the draconian, conservative laws are challenged in court. But it goes beyond impacting trans people. Certainly we see laws banning this care being put in place, as if gender-affirming care is somehow new but two Texas rulings pose serious consequences to other types of healthcare heavily sought by the LGBTQ community. 

The most notable of these is the ruling in Alliance for Hippocratic Medicine v. FDA. The North Texas judge ruled that Mifepristone, a drug used to provide medical abortions, should be banned because the FDA violated their responsibility in approving the drug over 20 years ago. There is no empirical scientific evidence of this, of course. In the short term, this ruling could block Mifepristone from being used throughout the nation, including states that have not implemented abortion bans. Considering that more than 50 percent of abortions are provided through the use of this drug, that is a pretty significant step in creating what amounts to a national ban on a drug prescribed for over 50 percent of the nation’s abortions. 

You may be thinking, “So what? Abortion isn’t an LGBTQ issue.” Well, a) you’re wrong about that, and b) the blocking of Mifepristone is the tip of the iceberg. If a judge can ban one drug they find objectionable, then they can also make the same determination about other types of drugs and/or treatments. Gender-affirming care is the most obvious issue in the news, but what about STI preventative health care? For example, PrEP. I know a lot of people in the LGBTQ community (mainly gay men) who love their PrEP. And they should. PrEP is over 99 percent effective at preventing HIV infection. But while many PrEP users are sitting silently while their trans siblings are being denied access to their health care, they may not realize that the courts are already making rulings that could limit or eliminate their access to PrEP.

In another Texas ruling, Kelley v. Becerra, preventive care, which is mandated through the Affordable Care Act, has come into question. In it, a judge ruled that an employer would have to continue to provide most preventive care in accordance with the ACA. However, there was one exception: PrEP. The employer claimed a religious objection to providing PrEP because, according to them, the drug promotes homosexual activity, so the judge agreed and ruled that PrEP could be excepted from that provision of the ACA on those grounds. The fact that PrEP is widely used by many people who are not LGBTQ-identifying seemed to make no difference. Because gay people might use PrEP, and because PrEP might be used while engaging in gay sex, and because the employer hates gays—especially gay sex—they shouldn’t have to provide it. 

Now, I hate to be the one to break it to the judge and the employer, but PrEP is a relatively new invention. Gay sex? Not so much. With or without PrEP, I feel certain gay sex and queer sex in general will prevail.

But wait, there’s more. You may now be thinking, “What’s the problem? Don’t these Texas cases primarily only impact Texas?” The answer is no. In the Alliance ruling, the restriction impacted the entire country because it was against the FDA approval, and not necessarily related to abortion specifically. It is a back-door way of eliminating abortion access. And when you ban a drug based on a determination of faulty approval, you ban it everywhere. But the problem is compounded by the fact that another ruling in Washington state, handed down moments later, said almost the exact opposite of the Texas ruling. This creates a situation known as circuit splitting. This is when two circuit courts, which have jurisdiction over different parts of the country, issue opposing rulings. This typically requires the Supreme Court to intervene, and the current Court appears to lean in the direction of the Texas case and not the Washington case. 

If this happens, then expect more drugs like PrEP to be blocked—and this, in turn, will have a chilling effect on drug companies who will no longer be able to rely on a consistent and rigorous review process that is used by the FDA. These companies won’t invest in drugs that may become the center of controversy. They will invest in drugs that make money. It is amazing that HIV prevention is something controversial, but this is America in 2023.

The Court has the power to interpret the Constitution in any way it sees fit. Historically, the Court would defer to precedent when it decided cases. This is important because it stabilizes the law in a predictable way. But there is no constitutional requirement to abide by precedent. Sometimes breaking with it leads to progress (desegregation, marriage equality) and sometimes this turns back the clock (no constitutional right to abortion). And right now, it isn’t looking good for progress. 

So, if we don’t vote, and if we don’t do something about this now, trust me when I tell you: they are coming for you next. If they haven’t gotten you already.