Don’t Buy Alito’s Assurances: Here’s What Happens Next After Roe Falls

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The leaked first draft of Associate Justice Samuel Alito’s decision in Dobbs v. Jackson has sent shockwaves throughout the American psyche. This is a stunning reversal of women’s rights that have been in place for half a century. It was also a thorough repudiation of the idea that the court will honor stare decisis (deferral to precedent) and it ends the concept of an inherent right to privacy implied by the 14th Amendment. While some commentators have attempted to downplay the effects of this decision, the consequences are nearly impossible to overstate.

The first order effect is that abortion will become illegal in roughly half the US overnight, mostly without exceptions for rape, incest, non-viability, or extreme birth defects. The trigger laws in place theoretically protect the life of the mother, but in practice many hospitals will refuse to perform abortions even on non-viable, life threatening ectopic pregnancies (the number one cause of maternal mortality). Similarly, Louisiana is already moving to pass a fetal personhood bill, which would treat all abortions as homicide punishable by life in prison, including those necessary to prevent the death of the mother. 

The US has one of the highest maternal mortality rates in the world already, and these bills will only drive it higher. The ethical questions posed by abortion are primarily answered by adherence to Christian doctrines within the US, meaning that these laws will force many Christians and non-Christians to die on behalf of someone else’s beliefs. Ethically, it’s little different than invading a country, pressuring the locals into your army, and using them as cannon fodder. 

Alito’s decision is, in practice, a declaration that Christianity, or “community morals,” is the appropriate basis for law that triumphs over any individuals’ freedoms, including the right to your own life. Most recognize this as a serious threat to individual freedom, but people on the Christian right tut-tut such concerns pointing to the fact that the decision highlights previous cases such as Lawrence v. Texas (which found sodomy laws unconstitutional), Obergefell (same-sex marriage), Griswold (birth control), and Loving (interracial marriage) and states that Dobbs v. Jackson “does not undermine them in any way.”

But anyone who reads the totality of the decision understands Alito’s writing here to be highly disingenuous for many reasons. First, Alito, Barrett, Thomas, and Kavanaugh have all been highly critical of Obergefell in the past, for the very same reasons they’re overturning Roe: namely that a right to same-sex marriage fails the “Glucksberg Test” for whether or not a right is, “deeply rooted in this Nation’s history and tradition.” 

The Dobbs decision torched stare decisis by finding that the Court can overturn anything they believe was “egregiously decided.” Given that the Court has already found that the implied right to privacy never existed in the first place (which Obergefell and all the others relied upon as their basis), Alito’s caveat wasn’t a statement of how he will rule, but quite the opposite: it was a plea to bring him cases.

Given his deeply anti-LGBT dissents in cases such as Obergefell, Bostock, Zarda, and Harris, the result of such challenges to LGBT rights are a foregone conclusion. The conservative justices have repeatedly stated in their dissents that protections of LGBT people impinge on the religious freedom of Christians and impinge on their human dignity by labelling them bigots.

All of this begs the question: what happens after this decision is formally handed down, likely in June? To paraphrase Shakespeare, Hell will be empty, and all the devils will be here.

A roadmap for a rollback

First, Senator Mitch McConnell is already indicating that he will overturn the filibuster and vote to ban abortion nationwide in 2025 if Republicans are able to gain control of the House, Senate, and White House. Louisiana is already moving to challenge Griswold by defining fetal personhood in such a way that anything preventing implantation (such as IUDs or the morning-after pill) would be regarded as homicide. Republicans at both the state and federal level are promising to ban birth control. Senator Mike Braun of Indiana told the press that Loving v. Virginia should be overturned, leaving laws on interracial marriage up to the states.

But the most immediate focus after overturning Dobbs v. Jackson will be Obergefell. This is the most recent “egregiously decided” decision that isn’t, in the Christian nationalist worldview of the new Supreme Court majority, “deeply rooted in this Nation’s history and tradition.” It’s likely the easiest to challenge, and the one that will generate less public outrage, because it targets LGBT people (~5% of the population) rather than women (~51%). Religious conservatives may have feigned disinterest in continuing to fight against same sex marriage, but they never gave up the dream. Now, it’s theirs for the taking.

Based on discussions with several independent sources, a picture of what will happen has emerged. Shortly after Dobbs is handed down, Texas Attorney General Ken Paxton will issue an opinion that Texas is no longer bound by Obergefell. Conservative legal groups like Alliance Defending Freedom (ADF) have already arranged clients to sue to overturn Obergefell, arguing that it was egregiously wrongly decided, and that they have standing as Christians who were negatively impacted by the decision. Simultaneously, Governor Greg Abbott will issue an executive order barring Texas officials from issuing marriage licenses to same sex couples.

These cases will work their way through the district court (where anti-Obergefell forces will probably prevail), then appealed up to the 5th Circuit (where they will almost certainly prevail), and then up to the Supreme Court, where the swing vote will be Neil Gorsuch. Given that he has signed off on Dobbs, and he’s very much a textualist and originalist, Obergefell will fall. The decision will be handed down most likely in June of 2024, but almost certainly no later than June 2025.

This will cause havoc for LGBT couples. Overnight, 34 states will go back to banning same-sex marriage, and most of them don’t have viable mechanisms in place to bring it back. Horrible legal questions arise: Will marriage licenses issued by Texas between 2015 and 2024 still be legal? What about military couples stationed in Texas? 

The situation becomes even more grim when you look at the bigger picture of where we’re going. What happens when Lawrence vs. Texas falls next? Or if the courts decide that “community morals” are sufficient to decide that all LGBT-related material is obscene? Republicans are already talking about making it a felony to flee to another state to get an abortion. They’re tearing trans children from loving, supportive homes and putting them in foster care for receiving transition-related medical treatment. It’s not hard to imagine where all of this goes.

Imagine states like Texas trying to extradite doctors and patients who’ve had an abortion in a blue state. Or, taking children away from same-sex parents under the excuse that these parents were exposing children to obscenity simply for being lesbian, gay, or transgender. Imagine if those LGBT parents flee Texas, and Texas tries to have them extradited from California? What happens when the only safe place to go for women and LGBT people is to get out of the US, and flee to someplace that will refuse to send them back?

If, in this scenario, California were to allow the extradition, there would be an explosion of protest and dissent, and a lot of Democratic politicians would lose their jobs to other, more ambitious and principled politicians who would refuse to comply. If California were to say no, but SCOTUS declared that they must, congratulations, we just reached the part of “doomed-to-repeat-history” known as Dred Scott, the disastrous, anti-human rights decision that was opposed by most Americans and made the (first) Civil War inevitable.

One can argue that Republicans are not insane enough to push it that far, but this flies in the face of observable reality. They’re already telegraphing their plans to remake American society in the image of what they believe their brand of Christianity demands. They (rightly) believe that they have the near-permanent upper hand and have yet to see any consequences for taking extreme positions. The GOP is doing everything it can to ensure that they’re in a position to overturn any election results they don’t like, locking this future in.

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