You’ve likely heard the news: A leaked draft opinion indicates that the U.S. Supreme Court will soon abolish the federal right to an abortion. This in itself will impact queer people as much as it will anyone—but could signal a threat to other LGBTQ rights as well.
Abortion Rights
More than half of U.S. states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the Guttmacher Institute. But the outcome could be worse. Justice Samuel Alito, in the draft opinion, writes that one of the problems he sees with Roe is its “failure to justify the critical distinction it drew between pre- and post viability abortions…. The definition of a ‘viable’ fetus is one that is capable of surviving outside the womb, but why is this the point at which the State’s interest becomes compelling?” His question evokes the “personhood” legislation that anti-abortion activists have pushed for years, claiming that an embryo is a person from the moment of conception—and if they succeed in convincing the Supreme Court of this, it could mean that abortion might not even be a state-by-state matter, but could be outlawed everywhere in the U.S. (See Jeannie Suk Gersen’s piece in the New Yorker or Françoise Girard’s piece in Ms.)
This is hugely scary for anyone who can get pregnant, not just heterosexual, cisgender women, but also queer women and trans and nonbinary people, as writer and news producer Imara Jones and National LGBTQ Task Force Executive Director Kierra Johnson made clear in this recent piece at LGBTQ Nation. Reproductive rights are queer rights. Everyone deserves the right to bodily autonomy, which is at heart what reproductive rights are all about.
Assisted Reproduction
Additionally, an abortion ban could have a negative impact on assisted reproduction, used by many (myself included) within and outside the queer community. Resolve: the National Infertility Association explains on its website that in states with personhood legislation, “anything that puts an embryo at risk could be a violation of law.” This would lead to worrying legal questions about assisted reproduction, and could mean that some medical practices choose not to offer such services. (See also this Washington Post piece on the topic.)
Marriage Equality and Other Queer Rights
The impact could go even further. Here’s how. The draft memo, among other arguments, says that the Due Process Clause of the 14th Amendment, “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Abortion, he says, does not fall into this category.
Later, Alito cites the landmark queer-rights cases Lawrence v. Texas (“the right to engage in private, consensual, sexual acts”) and Obergefell v. Hodges (marriage equality), and says that those in favor of abortion access should not lean on them as precedent for a “broader right to autonomy” (and thus to abortion). He explains that none of the rights that Lawrence or Obergefell enshrine “has any claim to being deeply rooted in history.”
That seems to imply that Lawrence and Obergefell, too, could be at risk. Alito later seems to walk this back a bit, noting that Roe says “abortion is ‘inherently different from marital intimacy,’ ‘marriage,’ or ‘procreation’),” and adding “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Still. I think we have every reason to worry. Trans rights are already under attack in many states. And as Jones and Johnson also explained, the organizations that are leading anti-abortion movement are also “targeting the trans community as the next wave in the war over who gets to control our bodies.” These attacks are coordinated. Other queer rights could be next.
We need to take action, but we also need to remember: While the Supreme Court draft is authentic, it is not final and has not yet been issued. For the moment, abortion remains legal, although some states clearly make it more difficult to access. (Oklahoma has just become the second state after Idaho to follow Texas in banning abortions after six weeks, long before most people even know they’re pregnant.)
So:
- Batten down your own hatches. Make sure your parental rights are as secure as you can make them. For same-sex couples, that still means taking steps beyond just having both parents on the kids’ birth certificate. (And yes, that is often a burden that unfairly hits families of fewer financial means, just like abortion access, which is why we also need to be updating states’ parentage laws.)
- Write or call your members of Congress and let them know why abortion access is important to you. While you’re at it, tell them to support the Equality Act, which would enshrine many LGBTQ anti-discrimination protections into federal law.
- Visit the Planned Parenthood Action Fund for other ways to take action.
Other reproductive justice organizations worth following include:
- The ACLU
- The Center for Reproductive Rights
- NARAL Pro-choice America
- The National Network of Abortion Funds
- Planned Parenthood
- The Southeastern Alliance for Reproductive Equity, which brings together a number of organizations working to build equity and systemic change in reproductive health.
- SPARK Reproductive Justice NOW, which works on reproductive rights in Georgia and the South, centering Black women, women of color and Queer/Trans Young People of color.
Yes, the Supreme Court news feels like a body blow, even if it wasn’t entirely unexpected. I’ll end with some words from the Task Force’s Kierra Johnson, who has a background in reproductive justice (and is also a queer mom). She said in a statement today: “I know we are tired, weary, and may be feeling hopeless but the alternative to getting active is doing nothing. And we can’t afford for our brilliance and power to lie dormant.”