The Supreme Court opinion suggests that fundamental gay rights are on the chopping block next:
“Respondents . . . rely on post-Casey decisions like Lawrence v. Texas and Obergefell v. Hodges. These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.”
For those who don’t know, Lawrence v. Texas was a landmark queer rights case because it struck down laws that criminalized homosexual intercourse. Obergefell v. Hodges is the landmark case that legalized same-gender marriage. And in this opinion, the Court implies that these freedoms are comparable to allowing drug use and prostitution, it explicitly says that these rationales have gone too far, and that these rights are not rooted in American history.
The Court is showing its hand and how it views what it perceives to be Court-created rights (abortion, gay marriage, gay sexual intercourse, etc.). Basically, the Court seems to be overturning the framework of substantive due process, which is the doctrine that creates these basic rights, by requiring a historical root—which marginalized people obviously do not have, since, historically speaking, women, queer folk, and people of color did not have equal rights.
If abortion rights can be overturned on this logic, so can queer rights (Lawrence, Obergefell), contraceptives (Griswold v. Connecticut), maybe even interracial marriage (Loving v. Virginia).
