On 2 May 2022, Politico published a leaked draft opinion of a US Supreme Court case entitled Dobbs v. Jackson Women’s Health Organization, a decision which was not supposed to be made public until the following month[1]. The leaked opinion, written by Justice Samuel Alito, stated that the Court would overrule the decisions of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the cases that made abortion a federal constitutional right. This immediately unleashed a firestorm across America. Pro-choice advocates took the streets in huge numbers with thousands gathering at the steps of the Supreme Court to protest the decision. Ultimately, on 24 June 2022, the official decision on Dobbs was published upholding the decision to overturn Roe. The verdict upended nearly 50 years of precedent, eliminating a previously held fundamental right for the first time in Supreme Court history.
The leaked draft opinion of the Supreme Court of Dobbs published by Politico on 2 May 2022.
This decision was not entirely out of the blue. With the death of legendary Supreme Court Justice Ruth Bader Ginsberg in September 2021, much attention was given to who would fill her seat on the bench. Just one month before the 2020 elections, Trump nominated the conservative judge, Amy Coney Barret, to the Supreme Court thus creating a 6-3 conservative majority. Many feared what this ideological shift in the Court would mean for the future of Roe, even though Barret assured Senator Klobuchar in her confirmation hearing that Roe was not a “super-precedent”, meaning that it was unlikely to ever be overturned[2]. Additionally, steps towards restricting abortion access had already been taking place throughout the country pre-Dobbs. For example, in my home State of Texas, Governor Abbott had already signed into law a 6-week ban on abortion, a timeframe in which most women don’t even know they’re pregnant yet, therefore resulting in a near total ban.
3 May 2022 – Pro-choice demonstrators gather in front of the Supreme Court
What does the Dobbs decision mean for abortion access?
In the immediate aftermath of the Dobbs decision, 26 States across the country moved quickly to cut abortion access to varying degrees. Of these 26 States, 13 had “trigger bans” in place, meaning that if Roe was ever overturned, a legislative ban would immediately come into place and abortion would be effectively outlawed (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming). In many of these States, the bans are all encompassing: there is no exception, even in the case of rape or medical risk to the mother’s life. As it stands, 1 in 3 women in America have lost access to elective abortions (approximately 20.9 million women)[3].
What does this mean for women (and all those with a uterus) seeking an abortion in the States with full or partial bans in place? One option is to travel to another State for this service. In addition to the considerable expense and inconvenience, this step is complicated by the regionalization of these bans. Consider a woman living in Louisiana who is seeking an abortion. She will have to travel across at least two States in any direction to find an open clinic. Additionally, for States bordering those with a ban in place, an influx of women seeking abortions may overwhelm the clinics and providers, many of whom are already under extreme pressure. It is also abundantly clear that these types of restrictions will disproportionally affect women of color, low-income women, rural women, and young women for whom traveling hundreds of miles and paying an increasingly high amount for an abortion is less feasible.
13 October 2022: NYT Article – a map of the States where abortion is now banned[4]
Implications for LGBTQ+ Rights
A major pro-life, anti-abortion argument is that the legal reasoning behind Roe is weak since the right to an abortion is not explicitly mentioned in the Constitution and the conference of such a right was an overstretch of federal power. For this reason, Roe has been under fierce attack ever since. For background, the justices who decided Roe held that the Due Process Clause of the 14th Amendment to the US Constitution provides a fundamental “right to privacy”, which protects a woman’s right to an abortion. The legal reasoning was used in subsequent cases regarding the right to make personal decisions about family, relationships and bodily autonomy. This type of precedent extends further back than Roe: a case decided in 1965 entitled Griswold v. Connecticut struck down an existing state law that prohibited the use of contraceptives by married couples. The court held that although the Constitution didn’t explicitly spell out the right to use contraceptives, specific guarantees in the Bill of Rights create “zones of privacy” into which the government cannot intrude, including the right to privacy surrounding marriage and family[5]. This same precedent was used in the Lawrence v. Texas case decided in 2003 in which the court affirmed the right to privacy regarding defining one’s own consenting sexual relationships, including homosexual relations. With the overturning of Roe, Lawrence and similar cases are under threat of facing the same fate. In fact, in Justice Clarence Thomas’ concurring opinion on Dobbs, he wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [legalization of contraceptives for married couples], Lawrence[decriminalization of homosexual relations], and Obergefell [gay marriage].” Republican States have already begun making moves to restrict LGBTQ+ rights, specifically targeting gay and transgender youth in schools. A few recent examples include Florida’s “Don’t Say Gay” bill, Louisiana’s ban on transgender students playing sports according to their gender identity and Texas’ Governor Abbot’s memorandum equating gender-affirming medical treatments for transgender youths as “child abuse”.
The Future of Women’s & LGBTQ+ Rights in Post-Roe America
On 13 September 2022, Republic Senator Lindsey Graham announced a plan for a federal ban on abortion. While this eventuality seems unlikely, it has put women across America on high alert. This is the direction our country is heading in. The tides of progress are washing away. In this post-Roe America, what is the future of women’s and LGBTQ+ rights?
It’s up to us, the young generation of Americans, to find a path forward. This path seems unclear especially with the uncertainty of the upcoming November midterms. But what is clear is that the fight cannot and will not stop until our fundamental rights are secure.
Getting involved can sometimes feel overwhelming, so here are a few good places to start:
- Vote for pro-choice and pro-LGBTQ+ candidates! Emily’s List, Human Rights Campaign, and Planned Parenthood have great resources to help you get informed.
- Be on the lookout for any protests & demonstrations in your area. Using your voice and showing solidarity matters!
- Social media advocacy
- Support and volunteer for organization your local community
[1] https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
[2] https://www.reuters.com/article/factcheck-barrett-abortion-idUSL1N2YB1V3
[3] https://www.washingtonpost.com/nation/2022/08/22/more-trigger-bans-loom-1-3-women-lose-most-abortion-access-post-roe/
[4] https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
[5] https://www.guttmacher.org/gpr/2003/10/what-lawrence-v-texas-says-about-history-and-future-reproductive-rights
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