FACT BRIEF

Did the Supreme Court state that it would overturn gay sex and marriage protections in a leaked opinion about abortion rights?

Wednesday, May 4, 2022

By Austin Tannenbaum

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A leaked draft of a Supreme Court opinion undoing federal abortion protections does not explicitly state that the court will also overturn gay sex and marriage protections. However, the arguments given for overturning Roe v. Wade could potentially be used to support overturning Lawrence v. Texas and Obergefell v. Hodges, which prohibited states from passing laws banning gay sex and marriage, respectively.

In the draft opinion, Justice Samuel Alito argues that there is no abortion guarantee in the Constitution, nor is "the right to abortion deeply rooted in the Nation’s history and traditions." Alito did state that the Court's ruling applies only to abortion rights and does not "cast doubt" on any other precedents.

Legal experts speaking with Bloomberg Law suggested that the opinion nonetheless implicitly challenges the legitimacy of Lawrence and Obergefell given that gay sex and marriage are similarly absent from the Constitution and "the nation's history and traditions." However, another expert noted that because these cases entail equal protection and due process considerations, they would be harder to overturn.

This fact brief is responsive to conversations such as this one.

Sources

Politico Supreme Court has voted to overturn abortion rights, draft opinion shows

Bloomberg Law Abortion Draft Raises Alarm Over Future of Privacy, LGBTQ Rights

Oyez Lawrence v. Texas

Oyez Obergefell v. Hodges

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