Dobbs v. Jackson Women’s Health Organization has ignited a firestorm of commentary warning that the end of Roe v. Wade would inevitably lead to the end of constitutionally protected queer rights. This article argues that it is far too soon to concede that Lawrence v. Texas and Obergefell v. Hodges are destined for the dustbin of history. Queer rights and abortion rights both advance equality and have significant liberatory value, but they are functionally different rights that rest on distinct legal foundations. Although both sets of rights may be essential to a progressive platform for inclusive political and social change, it is important not to conflate the equality-promoting impact of a right with the nature or legal basis for the right itself. These functional and legal differences are important not only for understanding the methods of subordination that lead to their denial, but also for crafting forward-looking legal and political arguments to support their preservation.
This article asks what Dobbs means for our understanding of individual liberty, specifically with respect to queer rights. This inquiry proceeds in four parts. The first part discusses the intertwined evolution of queer identity and legal status based on the liberty and equality principles enunciated by the Court from Bowers v. Hardwick through Obergefell v. Hodges. The second part explores the distinction between queer rights and abortion access both with respect to the nature of the rights and their constitutional foundations. It argues that these functional and legal differences are significant and should result in divergent legal futures. The third part examines the majority opinion in Dobbs and shows how both Lawrence and Obergefell should survive review on the merits, as well as under stare decisis. The fourth part offers a clear-eyed caveat. It acknowledges that the current political climate and make-up of the Court may nonetheless threaten the longevity of constitutionally recognized queer rights. It asserts that if these precedents fall, it would be the result of an exercise of political will rather than a reasoned and intellectually honest application of Dobbs. A brief conclusion discusses future legal avenues for ensuring protections for queer people and their families under Dobbs.
Queer Rights After Dobbs v. Jackson Women's Health Organization,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol60/iss1/3