When the draft decision in Dobbs v. Jackson Women’s Health was leaked, people immediately began asking whether the Supreme Court was coming for LGBTQ rights next. It’s a fair question.
Now that the Supreme Court has released its final decision, we know that it maintains the justification from Justice Samuel Alito’s draft opinion that the landmark 1973 Roe v. Wade decision must be overturned because it relied on rights that are not explicitly mentioned in the Constitution.
That reasoning could be used to attack other fundamental rights which rely on the principles that supported the right to abortion—including the right to privacy, the right to access and use contraception, the right to engage in same-sex sexual conduct, the right to be free from sterilization by the government, and even the right to enter an interracial or same-sex marriage. The opinion’s apparent disregard for the concept of stare decisis—the principle that obligates courts to follow precedent from prior cases when ruling on a similar case—bolsters fears that the Court could start rolling back additional rights.
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In fact, in a separate concurring opinion, Justice Clarence Thomas specifically calls for future cases to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell[,]” the decisions protecting birth control access, invalidating anti-sodomy laws, and finding a right to marriage equality.
But the idea that LGBTQ rights are next is not correct, because the assault on LGBTQ rights is already here. This is evidenced not only in the record number of anti-LGBTQ bills in state legislatures we saw this session, but because abortion rights are LGBTQ rights.
Both LBQ women and nonbinary and transgender individuals need access to reproductive health care services, including abortion. A 2021 report from the Williams Institute at UCLA Law School found that cisgender LBQ women have abortions at slightly higher rates than heterosexual cisgender women: 23 percent of cisgender LBQ women ages 18-49 have had an abortion, compared to 17 percent of heterosexual cisgender women in that age range. While there are no comprehensive studies on termination rates among transgender and gender non-conforming individuals (TGNC), we know that these populations also have abortions and will have their rights curtailed by the court’s decision.
Losing the right to access a safe, legal abortion will have the greatest impact on already marginalized populations, such as LGBTQ people who already face significant barriers and discrimination in accessing health care. The Williams Institute estimates that one in six LBQ women report not having health insurance and LBQ women are less likely to have gotten a recommended Pap test or mammogram, compared to heterosexual women.
TGNC individuals encounter unique difficulties when trying to access reproductive health care, including lack of trans-competent providers, exclusion from “women’s” health clinics and other provider discrimination, and lack of access to health care in general. Research shows that TGNC people assigned female at birth are less likely to obtain regular Pap tests and have difficulty accessing contraception.
Such disparities are particularly concerning given the statistics on unintended and teen pregnancies. Nearly half of LBQ women who have been pregnant were pregnant as teens, and sexually active bisexual girls have been shown to have 1.72 times greater odds of getting pregnant than their heterosexual cisgender peers. Transgender people assigned as female at birth also report experiencing unplanned pregnancies.
The LGBTQ community will be harmed by the rollback of Roe, and it won’t be by coincidence.
Restrictive abortion laws are part of a coordinated effort to curtail bodily autonomy and enshrine a narrow and oppressive view of sex, gender roles, and family into law—both by impeding reproductive rights and criminalizing LGBTQ health care.
It is crucial that we recognize this when we speak about whose rights are being eviscerated by the Dobbs decision. And it is imperative that reproductive rights and LGBTQ advocates work together to restore and protect these rights against further attacks on liberty and equality.
