The leaked Roe vs Wade draft opinion has been in the news for its possible impact on abortion rights, but it also paves the way for the erosion of gay rights in America. If constitutionally protected women’s rights that were recognised almost 50 years ago, and then re-affirmed almost 20 years later, could be revoked by a conservative supermajority in the U.S. Supreme Court, then similarly situated rights for gay and lesbian people — such as the right to marry someone of the same sex — are also susceptible to revocation.
A background
In December 2021, the U.S. Supreme Court concluded oral arguments in Dobbs vs Jackson Women’s Health Organization, an ongoing case that looks at a 2018 Mississippi law (The Gestational Age Act) that bans most abortions after 15 weeks. Almost 50 years earlier, the same top court held in Roe vs Wade (1973) that it was unconstitutional for states to ban or restrict abortions before fetal viability. Later, Planned Parenthood of Southeastern Pennsylvania vs Casey (1992) reaffirmed Roe’s central holding on viability. Keeping Roe and Casey in mind, lower courts permanently enjoined the Mississippi law, but the case eventually moved up to the Supreme Court, with the following question: are all pre-viability prohibitions on elective abortions unconstitutional?
This question (and the court’s acceptance to answer it) is at the heart of Roe and Casey because the Roe court had already decided that answer in the affirmative back in 1973; and this was re-affirmed in 1992 by the Casey court. The leaked first draft of the court’s majority decision in Dobbs, however, departs from precedent and signals a completely different turn. With conservatives currently holding a super-majority in the U.S Supreme Court, it should come as no surprise that Roe and Casey are set to be overturned by June or July 2022.
Impact on rights
A running theme in this first draft of the Dobbs judgment was the court’s emphasis on originalism. In fact, the very first page of the draft says that “the constitution makes no mention of abortion” (pg.1); then on page 9 it reads “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. Throughout the rest of the draft, Justice Alito writes extensively about how abortion rights were never a part of the “Nation’s history and tradition” and non-essential to ordered liberty — hence, ineligible for protection under the Due Process Clause of the Fourteenth Amendment as laid out in Washington vs Glucksberg (1997).
An originalist reading of the Constitution and an application of similar reasoning as the one applied in this draft opinion (minus the emphasis on protecting “life or ‘potential life”) could invalidate all rights for gay and lesbian Americans. Gay rights do not have any place in American history and tradition; it is quite the opposite with American history rife with instances of homophobia going back to the 20th century. Moreover, the reasoning employed by the Obergefell court that legalised same-sex marriage nationwide in 2015 was similar to the reasoning applied by the Roe and Casey courts years earlier — namely, that the then-existing same-sex marriage bans across the country were a violation of gay and lesbian people’s liberty rights, as found in the Fourteenth Amendment.
Similarly, in Lawrence vs Texas (2003), the Supreme Court upheld the privacy rights of gay and lesbian people while striking down Texas’s then-anti-sodomy law; these rights were located in a similar place in the Constitution as the right to abortion. Simply put, a rollback of Roe and Casey could allow state legislatures across the country to re-instate bans or restrictions on gay rights such as limitations on same-sex couple adoptions or sexuality education in schools. States could do this by arguing that gay and lesbian people have neither the fundamental right to privacy nor liberty protections in the Constitution because their rights have no place in the history and tradition of the country.
Moreover, because the Constitution makes no explicit mention of “privacy”, “sexual orientation”, “gay”, “lesbian”, or “gay rights” anywhere, these rights could be challenged further. The constitutional recognition of same-sex marriage is, after all, only a recent phenomenon, both globally and nationally; with Massachusetts being the first U.S. state to recognise such marriages just 18 years ago (in 2004) and The Netherlands being the first country in the world to do so just 21 years ago (in 2000).
The bottom line is that if 50 year-old constitutionally guaranteed rights could be revoked today, then more recent and similarly, situated rights could also be revoked under an originalist reading of the Constitution.
Redefinition of liberty
Another key feature of the draft opinion is the court’s re-examination of the meaning of the word “liberty” as found in the Fourteenth Amendment. In 1992, the Casey court affirmed what was already decided two decades ago in Roe — namely, that women in America had the “liberty” to an abortion under the Fourteenth Amendment. However, the Dobbs draft ruling discards this right to “liberty” just as it does the right to “privacy”. Page 14 reads: “the clear answer is that the Fourteenth Amendment does not protect the right to an abortion”. Interestingly, the Constitution also makes no explicit reference to fetuses as “people” nor any reference to marriage as a constitutional right, let alone marriage for people of the same sex or those of opposite races. But by specifically re-defining “liberty” and calling into question its applicability in the case of abortions, the court paves the way for potentially reviewing other “liberty” rights not explicitly mentioned in the Constitution — such as the right to travel ( Kent vs Dulles, 1958), the right to inter-racial marriage ( Loving vs Virginia, 1967), and the right to engage in same-sex activity in private ( Lawrence vs Texas, 2003), among others.
As it stands now, Roe and Casey remain the law of the land; only time will tell what the final decision of the court will be, and when it will be announced. Either way, the final decision will most likely end Roe and usher in a new era for the abortion and gay rights debate in America.
Kanav Narayan Sahgal is Programme and Communications Manager, Vidhi Centre for Legal Policy and Nyaaya. He focuses on the domains of gender and sexuality research and advocacy (with a specific focus on LGBTQIA+ communities). The views expressed are personal
