What the Supreme Court’s Dobbs Decision Means for LGBTQ+ RightsAugust 9, 2022
*By Cirrus Jahangiri
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overturn federal constitutional abortion protections found in Roe v. Wade has the LGBTQ+ community alarmed that their rights are in jeopardy. As we transition through this new America, it is imperative to discuss the intersection of reproductive and LGBTQ+ rights that have been impacted by Dobbs.
First, LGBTQ+ people are directly affected by the Dobbs decision because members of the LGBTQ+ community disproportionately access reproductive health care. A fact sheet of key statistics released by the Human Rights Campaign shows the importance of abortion protections to the LGBTQ+ community:
- Lesbian (22.8%) and bisexual (27.2%) women who have been pregnant are more likely than heterosexual women (15.4%) who have been pregnant to have had an abortion.
- Over 1/3 of lesbian women who seek an abortion experienced physical abuse from the person who got them pregnant; 14.8% of lesbian and 3.2% of bisexual women said abortion was the result of a forced sexual encounter (compared to 1.2% of heterosexual women).
- 36% of transgender people who have been pregnant considered trying to end pregnancy by themselves “without clinical supervision”; almost 1/5 went through with an attempt. Factors that led transgender people to end their pregnancies themselves include fear of intimate partner violence, and discrimination based on provider opinions on abortion or the patient’s gender identity.
Second, LGBTQ+ people are also potentially affected by the Dobbs decision because of the shared constitutional basis between reproductive and many LGBTQ+ rights. The Fourteenth Amendment’s Due Process Clause creates a legal concept known as “substantive due process,” which protects the right to “liberty.” The right to privacy—which is the bedrock for abortion rights (Roe and Casey), same-sex sexual intimacy (Lawrence v. Texas), and same-sex marriage (Windsor v. United States and Obergefell v. Hodges) —is embedded in the liberties that people are entitled to under the Constitution. For nearly 50 years, the right to privacy safeguarded peoples’ autonomous decision-making over the most personal life choices. However, the Supreme Court ruled in Dobbs that the Fourteenth Amendment’s substantive due process protection of liberty does not include a federal right to abortion.
What does Dobbs mean for LGBTQ+ rights beyond the right to abortion?
Same-Sex Sexual Intimacy and Marriage Rights
While reproductive rights and same-sex sexual intimacy and marriage rights share a constitutional basis, the Court has not yet signaled an intention to overrule Lawrence, Windsor, or Obergefell. Nonetheless, Justice Thomas stated in his concurrence that the Court should reconsider all of its substantive due process precedents. And although the majority opinion states that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the majority’s eagerness in Dobbs to overturn as significant a precedent as Roe has alarmed other communities whose rights stem from the legal principles underlying Roe. The dissent correctly voiced these fears, stating “no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.” At this point, however, it is unclear whether or how the Court will readdress the Lawrence, Windsor, or Obergefell rulings.
LGBTQ+ people are still protected from discrimination in the workplace thanks to the Supreme Court’s 2020 ruling in Bostock v. Clayton County. Because Bostock dealt with the interpretation of Title VII of the Civil Rights Act rather than the Constitution, its reasoning is not affected by Dobbs. But the boldness of Dobbs indicates other threats to LGBTQ+ employment rights could be on the horizon. For example, the Court could hear First Amendment religion-based challenges by employers with religious objections to hiring LGBTQ+ people, or free speech challenges by those who are compelled by anti-discrimination law to use a person’s name and pronouns.
What steps can I take to safeguard my rights in light of the Supreme Court’s decision in Dobbs?
For those anxious about the potential implications of the Court overruling decisions like Windsor and Obergefell, COLAGE, Family Equality, GLBTQ Legal Advocates & Defenders, and the National Center for Lesbian Rights created a guide for what LGBTQ+ families need to know to protect their marriage and familial rights. They encourage LGBTQ+ people living in states that do not have codified same-sex marriage protections to create estate planning documents like wills, power of attorneys, etc., to protect their marriage and assets stemming from marriage. They also encourage families to secure court judgments or decrees of parentage that would be legally binding if marriage rights were overturned. You can also contact your Senators to express support for the Respect for Marriage Act. The Act would repeal the Defense of Marriage Act that categorized marriage as between one man and one woman and replace it with a requirement of respect by the federal government for same-sex and interracial marriages. The Act would also require interstate recognition of same-sex marriages.
*Cirrus Jahangiri is a law clerk with the Gender Equity & LGBTQ Rights Program at Legal Aid at Work