Attendees to the rally for reproductive rights in Tiguex Park protesting the Supreme Court decision that overturned Roe v. Wade on Friday, June 24, 2022, hoist signs, clap, cheer, and lift their fists. (Photo by Shelby Wyatt for Source NM)
More nationally protected rights could be in danger using the same reasoning that upended Roe v. Wade. Same-sex marriages and sex, and birth control decisions were mentioned by Justice Clarence Thomas in his concurring opinion in the decision to end 49 years of upholding abortion rights across the United States.
The original decision in Roe v. Wade was based in the 14th Amendment Due Process clause, which allows for a right to privacy. But the Supreme Court now argues that abortion isn’t protected by the amendment because it’s not mentioned directly in the Constitution, nor was it generally accepted at the time.
This reasoning can extend to numerous other cases based in the 14th Amendment, including those allowing for contraception access and usage as well as LGBTQ+ rights, said Maria Martinez Sanchez, deputy legal director with New Mexico’s American Civil Liberties Union.
Other decisions are at risk despite the fact that the opinion to overturn Roe v. Wade mentions multiple times that non-abortion rights are not being threatened, she said. Against the majority, the dissenting justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that they also think other rights could be tampered with.
“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,” the joint dissenting opinion reads.
Thomas’ concurring opinion targeted three specific cases that could be reconsidered: Griswold v. Connecticut, which allowed married couples to make private decisions about birth control, Lawrence v. Texas, which barred criminalization of consensual same-sex sexual relations, and Obergefell v. Hodges, which legalized same-sex marriage.
In Justice Brett Kavanaugh’s opinion, he asserts that no other precedents are involved or being doubted. But this kind of claim is just there to appease the public for the time being, Martinez Sanchez said.
Thomas is kind of saying the quiet part out loud. It’s pretty clear that that is what they want their next steps to be.
– Maria Martinez Sanchez, ACLU-NM
The overturning of Roe v. Wade ignited rage and protests around the nation on Friday and over the weekend.
“The majority in Dobbs is trying to, I think, quell the fears of people, because we know what this decision implicates,” Martinez Sanchez said. “It could have devastating consequences for same-sex marriage, for contraception, for same-sex intimacy.”
These issues and other bad policies disproportionately impact queer and transgender people and people of color, said Marshall Martinez. He is the executive director of Equity New Mexico, an organization that works toward LGBTQ+ equality in the state.
New Mexico legalized same-sex marriage in 2013, before Obergefell v. Hodges was decided by the U.S. Supreme Court in 2015. So New Mexico’s law would stay in place even if Obergefell was struck down. Martinez assured New Mexicans that their rights are still protected regardless.
“In New Mexico your abortion is safe and legal. Your right to access sexual and reproductive oral care is still protected. And your marriage is still valid. And none of those things will change as a result of this decision,” Martinez said.
Still, ACLU attorney Martinez Sanchez said these rights can’t be taken for granted. She pointed to the upcoming general election in November where a Republican governor could step in and the N.M. Legislature could become more conservative.
Other state legislatures are dealing with bans involving same-sex rights and contraception privacy rights. Mississippi would immediately ban same-sex marriage if Obergefell v. Hodges were overturned, and Florida only allows marriage between a man and woman in their law books, though federal law overrules that today. Some states have already fought against couples’ rights to birth control, like Missouri attempting to block Medicaid financing from covering contraceptives or Idaho holding legislative hearings on banning emergency contraceptives like the morning-after pill.
Once bans like these are challenged at a state level, they’ll eventually wind up at the Supreme Court, Martinez Sanchez said, which is where the rights could be lost.
University of New Mexico Ph.D. student Emily Ahrend is pansexual and married to a non-binary person and doesn’t feel safe.
“The current Supreme Court and how conservative it is can frame the future for people for many generations,” Ahrend said.
The case Equality NM’s Martinez most fears being overturned is Lawrence v. Texas, he said, which pits police officer accounts against the word of someone facing allegations for having consensual sex with another adult of the same sex. That could become a situation more people will face if this decision is also overturned.
And restrictions on sexual relations could just be the start, Martinez said. Taking away access to HIV medication is one example of something else that states could try to restrict as a result of the case falling, he said.
“If a state decides that what they want to do is restrict sexual activity among adults, or make it risky or as a method of restricting it, what’s to stop these states from prohibiting doctors in their states prescribing that medication?” Martinez said.
The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 protects Americans living with HIV from discrimination, including being denied services or benefits from hospitals or other places that give medications.
More cases being overturned could lead to disaster — and faster than people think, Ahrend said.
“With these sorts of things being reviewed, it’s not just an attack on the communities in question or populations in question,” Ahrend said. “It’s something that will affect our privacy and security for very many years to come.”
Preventing this from happening comes down to voting, Martinez Sanchez said. She spoke of ensuring that voting rights are not being blocked through tactics like voter suppression and gerrymandering, and said that people need to listen to experts and advocates on these issues.
“The courts aren’t going to save us.” she said. “I think the only thing that’s going to save us is collective action, voting and demanding that our institutions don’t get any further corrupted than they already are.”
But Ahrend isn’t sure that this is the solution.
“Voting isn’t enough anymore,” Ahrend said. “If voting was enough, this wouldn’t have happened.”
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