The United States Supreme Court issued a devastating blow to women’s rights to self-determination over their own bodies as it overturned Roe v. Wade in the recent decision in Dobbs v. Jackson Women’s Health Organization. In a 6–3 decision, the Court held that Roe was wrongly decided, and that because that decision was rendered “only” 49 years ago, the rights declared in Roe were not “deeply rooted” in American history, and therefore could be overturned. Given that decision, now it is up to each state to determine whether women and medical providers will have the right to make their own decisions, in some cases, even where the pregnancy threatens the life of the mother.
Given the nature of that decision, LGBTQ+ citizens are understandably alarmed about whether we are next in line to lose legal protections. While I would love to assure people that will not happen, unfortunately I have to report that we are at risk.
The majority decision (written by Justice Alito) in Dobbs purports to render it as a narrow decision addressing solely abortion. In fact, in response to the dissent raising concerns that the Court would overturn prior decisions, including Obergefell (the decision legalizing marriage equality), Alito specifically wrote that the dissent is trying to “stoke unfounded fear that our decision will imperil those other rights.” Justice Kavanaugh similarly wrote in his concurring opinion that the decision does not implicate other rights and protections, including Obergefell, and confines the opinion to abortion. However, Justice Thomas—despite being a beneficiary of a Supreme Court decision overturning criminal statutes prohibiting interracial marriage—flat out calls for overturning all of those decisions (but not surprisingly, stops his historical analysis a few years shy of the Loving v. Virginia decision). No one joined Thomas in his dissent.
If we conclude that Thomas is an outlier even on this conservative Supreme Court, and if we believe the conservative justices when they reiterate that they are singling out abortion only, then we should have confidence that marriage equality and other Court-established protections for LGBTQ+ citizens will remain the law of the land. It is likely that new lawsuits will test this resolve in the next several years, but we can’t just sit back and wait to see what happens.
So what can we do? It is time to take action. The Dobbs decision does not in itself make abortion illegal. Instead, each state has the authority to pass laws regarding abortion. If Obergefell is overturned in the future, despite the assurances of Alito, Kavanaugh, and others, marriage equality will similarly be a state-by-state determination. The only way to truly secure protection is to make sure that our elected officials actively support equality for their LGBTQ+ citizens. Platitudes during Pride month or generic statements of equality are insufficient. We must demand legislative action. But we must also vote in numbers that can’t be overcome. That means sacrificing time and money to get out the vote and actively supporting legislators who are truly allies. It means talking to your friends, family, and coworkers about how devastating it is for our families to potentially lose basic protections and legal dignity, and making sure they vote accordingly. It means mobilizing young people and others who have never voted before. We have the numbers to make this right, but numbers are meaningless unless they are turned into actual votes.
Michele Pereault is a shareholder and Chair of the Family Law department of DeWitt LLP. Her practice includes representing families and individuals in family matters ranging from adoption, to prenuptial agreements, divorce, and estate planning. She’s also a former Board member of Fair Wisconsin.