The Supreme Court appears poised to overturn two landmark decisions, 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey, that established and reaffirmed the constitutional right to abortion, per a leaked draft of a majority opinion written by Justice Alito and obtained by Politico.
The arguments behind the 98-page opinion are essentially taken straight from the longtime conservative Christian playbook against Roe, including that the court’s opinion was “egregiously wrong and deeply damaging,” that is is a shining example of judicial overreach, and that it lacks “grounding in the constitutional text, history, or precedent.” According to a Politico source, four other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — voted with Alito following oral arguments in December. Democrat-appointed justices, including Stephen Breyer, Sonia Sotomayor, and Elena Kagan, are reportedly working on at least one dissent. It’s unclear how the Bush-appointed justice John Roberts will vote. As of this week, those votes remain unchanged, according to Politico’s source.
Alito’s leaked opinion is not yet an official ruling of the court, meaning that abortion is still legally protected in America. Yet politicians and activists are girding for the worst, and several Democrats, including New York Senator Chuck Schumer and California Governor Gavin Newsom, have pledged to protect abortion rights at the federal and state levels. If the Court does decide to overturn Roe, it will have immediate ramifications for nearly half of the U.S., where laws banning or otherwise limiting abortion will go into effect. Yet the decision could also have far-reaching impacts on LGBTQ+ people, and several parts of Alito’s leaked opinion hint at ways its logic could be used to overturn the rights to queer sexual privacy, same-sex marriage, and a host of other legal precedents that could endanger LGBTQ+ people.
Abortion access has always been an LGBTQ+ rights issue because queer and trans people have always gotten abortions, despite the fact that the issue is often framed as one that only concerns heterosexual, cisgender women. Moreover, the right to abortion has always been a queer issue because it is a fundamental question of bodily autonomy, a connection Alito draws out in his opinion. He notes that one of the central tenets of Roe is the right to privacy, which Casey further defined as the freedom to make “intimate and personal choices'' that are “central to personal dignity and autonomy.”
Alito argues, however, that this right to autonomy is “broadly framed” and not “absolute.” He explicitly criticizes two post-Casey decisions that rely on the rights to privacy and autonomy: Lawrence v. Texas, the 2003 case that established that criminal punishments for gay sex are unconstitutional, and Obergefell v. Hodges, the 2016 ruling that established the right to same-sex marriage as constitutionally protected. “These attempts to justify abortion through appeals to a broader right to autonomy and to define one's ‘concept of existence’ prove too much,” Alito writes. Though Lawrence has nullified sodomy laws in many states for nearly two decades, there is a contingent on the right who want to see that case overturned as well. Former Texas Solicitor General Jonathan Mitchell, the architect of Texas’ stringent six-week abortion ban, referred to the Lawrence decision as “court-invented rights” in a July 29 amicus brief to the Supreme Court case to which the leaked decision refers. Despite Lawrence voiding these laws, 12 states have still not wiped sodomy bans from their books.
Using a slippery slope argument, Alito says that citing autonomy to allow for abortion could one day lead the United States to “license fundamental rights to illicit drug use, prostitution, and the like.” In no uncertain terms, Alito says that the right to sexual autonomy and the right to same-sex marriage are ahistorical, and therefore are not protected by the constitution. “None of these rights has any claim to being deeply rooted in history,” he writes.
Alito has previously argued that Obergefell should be overturned. Along with Justice Thomas, he issued an opinion in October 2020 arguing that the historic marriage equality verdict, to which they both dissented, was a “cavalier treatment of religion” that privileges “novel constitutional right over the religious liberty interests protected by the First Amendment.” Alito again lashed out against Obergefell in a November 2020 address to the right-wing Federalist Society, claiming that the ruling meant that the court had “created a problem that only it can fix.”
It’s also worth noting that Alito’s invocations of sex work and drug usage are also fundamentally anti-LGBTQ+. Trans women, even those who are not sex workers, have always been unduly targeted by anti sex-work laws, such as the various “anti-loitering” laws in place in various state legislatures around the country. More accurately nicknamed “Walking While Trans” laws, these vague statutes enable law enforcement to arrest people for “loitering for the purposes of prostitution,” and they disproportionately impact trans women of color. The fight for drug users’ autonomy is a trans issue, too, given how often conservatives have classed gender-affirming healthcare as “experimental drugs and surgeries.” Sex workers and drug users are people who intimately understand the importance of bodily autonomy — and given that queer and trans people are disproportionately more likely to have done sex work or used drugs than the general population, Alito’s logic in the leaked opinion is terrifying for our broader community.
It’s worth reiterating that this leaked document is just that; it doesn’t yet hold any legal weight and will almost certainly change significantly if it does end up being the court’s majority opinion. But that doesn’t mean that we can let our guard down. If the document is authentic, LGBTQ+ people have every reason to believe that our rights to sexual freedom, marriage, and general bodily autonomy are up for judicial debate. But just as it was before Roe and before Lawrence, people will always have abortions, and people will always have gay sex. It’s up to community-level responses to keep us safe.
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