Abortion Decision Leak Sounds ‘Firebell’ for LGBTQ Activists
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In an unprecedented development, a purported draft of what is believed to be 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.
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 (May 2), appears to be authentic. 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 they believe the draft released Monday is authentic and that 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 who seek an abortion.
In language especially troubling to LGBTQ legal activists, the 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-fourths of 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.
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 — beside him and Thomas — willing to end same-sex marriage, that would have been part of this decision.”
The apparent leaking of the draft decision 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 farreaching consequences of the opinion.
“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 firebell in the night,” said Evan Wolfson, saying 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.”