LGBTQ+ Advocates Fear Implications of Overturning Roe v. Wade

Update, Friday June 24: The Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, announced today, overturns Roe v. Wade and eliminates the constitutional right to an abortion.

California guarantees the right to abortion in statute and the state constitution. Our state’s abortion laws are the strongest in the United States. Both officials and abortion providers have made it very clear that abortion access in California will not change because of the U.S. Supreme Court’s decision. Read more about the overturning of Roe v. Wade.

Original story:

Earlier this week, a draft of a U.S. Supreme Court opinion leaked to Politico suggested that the court’s conservative majority is on the verge of overturning Roe v. Wade, the landmark 1973 decision that guaranteed the federal constitutional right to an abortion.

If Roe v. Wade is overturned, the impact on abortion access would be most immediately felt in those states where leaders have already made clear their intention to restrict abortion, or ban it altogether.

Communities of color and queer people in those states — specifically transgender people — would be especially affected if Roe v. Wade is revoked, advocates say.

"We see reproductive rights and abortion rights [as] central to the queer community and not something separate from the queer community," said Rebecca Rolfe, executive director of the San Francisco LGBT Community Center.

The leaked draft opinion and the legal argument it's based on also are raising deep concern about future effects on other rights Americans hold — including marriage equality, access to contraception and interracial marriage.

• Jump to: Why does the SCOTUS draft opinion potentially affect other rights beyond abortion?

On Tuesday, President Joe Biden said he believed the reasoning contained in the draft opinion "would mean that every other decision related to the notion of privacy is thrown into question."

Such a decision, Biden said, could threaten "a whole range of rights ... and the idea we're letting the states make those decisions, localities make those decisions would be a fundamental shift in what we've done." Biden specifically said he was concerned about challenges to contraception and the legality of same-sex marriage.

Gov. Gavin Newsom echoed these fears on Wednesday, at an appearance at a Planned Parenthood office in Los Angeles. Newsom said the Supreme Court was "poised to roll back constitutionally protected rights, and don’t think for a second — don’t think for a second — this is where they stop."

"They are coming after you," said Newsom. "You think for a second same-sex marriage is safe in the United States? If privacy is not constitutionally protected, this opens up a panoply of issues."

How overturning Roe v. Wade could affect LGBTQ+ rights

Why do people fear that the overturning of Roe v. Wade could have knock-on effects for other rights, including same-sex marriage?

NPR political correspondent Danielle Kurtzleben explains:

A central idea in Roe is that abortion is an "unenumerated right," meaning the Constitution protects it even if it doesn't explicitly say so. It's also protected by the 14th Amendment, which the Supreme Court has used to protect peoples' right to privacy in other forms.

In his draft opinion, Justice Samuel Alito argues that when the 14th Amendment was passed back in 1868, American law did not recognize abortion as a fundamental right, and therefore the right to access one is not protected.

So as legal historian Mary Ziegler told NPR, Justice Alito's logic could be carried over to other rights Americans hold.

In 1868, when the 14th Amendment was written, neither same-sex nor interracial couples could legally marry — and birth control was criminalized. So the logic, says Ziegler, is "if that's how we determine where our constitutional rights begin and end, there's no reason that would stop with abortion."

In the draft opinion he authored, Alito wrote that "nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." But as NPR's Kurtzleben points out, that doesn't mean that the Supreme Court can't change its mind in the future.

LGBTQ+ organizers in California mobilize

The Supreme Court could potentially start questioning the historical validity of other rulings using Alito's logic, said Samuel Garrett-Pate, managing director of external affairs for Equality California, an LGBTQ+ civil rights group.

He points to rulings like Obergefell v. Hodges, which recognized the legality of same-sex marriages in 2015, and Lawrence v. Texas, which in 2003 struck down anti-sodomy laws. Both rulings are partially based on an interpretation of the 14th Amendment and could be under threat if justices base future decisions on what rights they believe are rooted in history, he adds, referencing Justice Alito's conclusion that the right to an abortion "is not deeply rooted in the Nation’s history."

"To ... be told by a justice on the Supreme Court that our existence isn't deeply rooted in history, that our right to exist is somehow less important than everyone else's — because in his ahistorical view, we have not existed throughout history — it's devastating," Garrett-Pate said.

But Alito's leaked draft opinion has fueled organizing efforts across the state, Garrett-Pate said, and not just to protect abortion rights.

Equality California is working with a coalition that includes Planned Parenthood's state affiliates to push an amendment to the state's constitution that would protect the right to abortion in California.

This organizing is in tandem, Garrett-Pate said, with the work his organization is doing in support of SB 107, a bill co-sponsored by State Sen. Scott Wiener (D-San Francisco) that would prohibit California courts from honoring court judgments separating transgender kids from their parents due to parents supporting their kids' access to gender-affirming health care.

That bill arose partly in response to legislation introduced by Republican state lawmakers across the country that propose making it a felony for parents to consent to gender-affirming care for their transgender children. In March, Texas Gov. Greg Abbott issued a directive calling for child abuse investigations of parents who seek gender-affirming medical care for their transgender children.

While a Texas judge temporarily blocked Abbott's directive, the state's attorney general later announced it would appeal that decision. Garrett-Pate said he has very little faith that the judicial system will protect transgender kids and their families — especially after the draft of the Supreme Court's opinion leaked.

"If we can't count on the legitimacy of the court in protecting civil rights for all people, in protecting equality and liberty and justice and privacy, all fundamental rights that are protected by the Constitution," he said, "then we need to do the work here in California."

The San Francisco LGBT Community Center's Rebecca Rolfe echoes this sentiment and argues that the draft ruling is part of a longer trend in the judicial system where landmark civil rights cases and legislation are being weakened.

"We've seen that with the erosion of voting rights and the impact that has on BIPOC [Black, Indigenous and people of color] voters and marginalized and low-income voters," she said.

That's why, she adds, initiatives to protect abortion rights that come after the draft ruling must be in solidarity with other organizing efforts to defend other rights that could be imperiled by future judicial decisions.

"There is no attack on one set of civil rights that doesn't attack all civil rights," she said. "We certainly see that in the LGBTQ community, that reproductive rights are LGBT rights, that voting rights are LGBT rights."

This story contains reporting from KQED's Danielle Venton, NPR and The Associated Press.