As LBGTQ people, we stand at a shaky precipice. We can look back over our shoulders and see the hill we have had to crawl up over the last fifty years. The results of Stonewall are apparent everywhere and the fight we continued has given us the freedom to marry and many more rights that we barely had before.
Looking forward is different. We peer off into an uncertain future that we can’t fully realize. We live in the safety we think we have from the years fraught with struggle and loss and say we have made our way. That future became much more uncertain when Roe vs. Wade was set to be voted on in Texas, this year. As of September 1st, Texas passed Senate Bill * which made abortions at six week illegal. This measure made almost all abortions.
Why does this have an impact on the rights we have won through Supreme Court battles? For the same reason that Texas was able to overturn Roe v. Wade in their state.
Roe v. Wade
Norma McCorvey, better known as Jane Roe, became the center point for a landmark decision that affected all women in Texas.
In 1969, McCorvey became pregnant with her third child and at the time decided she wanted an abortion. McCorvey lived in Texas where abortions were illegal unless it was necessary to save the mother’s life. A panel of judges, in Texas, ruled in her favor. The state of Texas decided to appeal the decision by going to the Supreme Court.
In January 1973, the Supreme Court, using the Fourteenth Amendment of the US Constitution’s Due Process Clause, which provided a right to privacy, ruled that women had the right to choose whether or not they wanted an abortion. They issued a caveat with the ruling that said this right was not absolute and that it must be balanced with the government’s interests in protecting women’s health and prenatal life.
This ruling has led to many court battles and strong held opinions and in this year, it was finally ruled that Texas had a right to make abortions illegal once again.
The Shadow Docket
The decision for Texas to, once again, make abortions illegal sent shockwaves through the nation. We are still sussing out how it happened and how it can be corrected.
You may ask how did this happen so quickly?
At present, the Supreme Court is made of nine sitting judges. Five of them have strong right-wing beliefs. This gives them a voting majority. This also makes it almost impossible for any left wing bill to make it through easily.
Justices Alito, Coney-Barrett, Gorsuch, Kavanaugh, and Thomas easily enacted thos new law with a single paragraph. They used a ;little known request called a “shadow docket” to settle this controversial case without holding oral arguments of any kind. If you aren’t familiar, a “shadow docket” is a procedure where sitting justices can decide weighty cases on an emergency basis. This procedure doesn’t require written briefs or arguments. Historically, this procedure is used in cases where the Court believes an applicant will suffer “irreparable harm” if the request is not handed immediately. It wasn’t used to rule on serious legal or political issues until 2017. Since that time, it has been used in many cases requested by the Department of Justice.
This ruling made a 50 year old ruling obsolete in a matter of minutes.
A portentous precedent
“We are asked to resolve these novel questions… without ordinary merits briefing and without oral arguments.” – Chief Justice John Roberts
The use of a shadow docket gives the Supreme Court a carte blanche method to overturn previously held laws. One simple paragraph/decision and long held laws can suddenly be overturned.
Conservatives have long wanted to overturn the abortion law to ban a pregnant person’s right to choose an abortion. However, that isn’t the only piece of legislature they have been chomping at the bits to overturn.
Obergefell v. Hodges is the Supreme Court ruling that all out the legalization of marriage equality and thus allowing LGBTQ people the rights to marry freely and legally. This is another LARGE target for conservatives.
Justices Alito and Thomas have spoken out on many instances that they felt Obergefell was decided too quickly and wrongly.
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.” – Justice Clarence Thomas
Thomas isn’t the only sitting Justice who shares these opinions. Justice Alito has made similar claims. Coney-Barrett is known for her anti-LGBTQ history and also shares Thomas’ sentiment.
Ohio’s SAFE Act
We don’t have to go far to see how our rights can be impacted. Closer to home 25 Republicans introduced a bill on October 19, 2021 that would prohibit people under the age of 18 from obtaining hormone treatments, puberty blockers and surgery to transition genders, even with parental consent. The bill doesn’t stop there, this bill also prevents medical professionals from making referrals for individuals under the age of 18 ro any medical doctor for gender transition procedures. It would also for school staff to share with the parents/legal guardian of a minor any information related to a minor’s perception that their gender is inconsistent with their assigned sex. It doesn’t stop there. It also prohibits any health insurance policy or plan in Ohio from providing reimbursement for gender transition procedures for individuals under the age of 18.
This bill (HB 454) has been dubbed Save Adolescents from Experimentation Act or the SAFE Act.
James Knapp said ” It is reprehensible that some lawmakers continue to use trans children as pawns in their reelection schemes. HB 454 flies in the face of evidence-based best practices and current standards of care.“
This bill is being backed by the Center for Christian Virtue, formerly known as Citizens for Community Values) they have been responsible for many other anti-LGBTQ legislation over the years.
This bill seeks to punish any doctors or medical professionals with disciplinary action and cut funding to any hospital, clinic, or any facility that provides any gender transition care to any minors.
And then they came for me
We are in an age where the government and many people seek to prevent us from gaining any further ground in our fight for rights. When it becomes harder to go after adults and their rights we are seeing a turn where legislators are attacking the limited rights of minors. We have achieved so much since Stonewall and many times it may seem that we have forgotten that we have much further to go. I leave you with a quote that sums up how we should be thinking. While it may be easy to let so much go because people feel it only affects LGBTQ people, what will you do when we aren’t the targets anymore?
“First they came for the socialists, and I did not speak out—because I was not a socialist.Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me–and there was no one left to speak for me.”–Martin Niemoller