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The decision of the United States Supreme Court to bury the federal right to abortion could pave the way for other rollbacks of public freedoms such as access to contraception, gay marriage and even sex between people. of the same sex.
What if this was just the start? After the questioning, Friday, June 24, of the Roe vs. Wade judgment which, since 1973, granted American women the right to abort throughout the country, the judges of the Supreme Court could continue their conservative crusade by attacking access to contraception or the rights of LGBT+ people.
It was the most conservative judge in the institution, Clarence Thomas, who reignited the fears of the progressive camp in the United States. The magistrate known for his radicalism has indeed indicated that he wants to reconsider other historic decisions in a personal argument accompanying Friday’s arbitration.
In the viewfinder of the judge appointed for life by George Bush Sr., the Griswold vs. Connecticut judgment of 1965, which establishes access to contraception for married couples; the 2003 Lawrence v. Texas decision, which outlawed laws against sexual relations between two people of the same sex; and the 2015 Oberfell v. Hodges decision, which authorized same-sex marriage, the number one target of the religious right. American.
“Once again, Judge Thomas has been clear: he believes that some people have fewer rights than others and do not deserve to commit to the person they love,” said the New York Times. Jim Obergefell, civil rights activist and lead plaintiff in the 2015 case that legalized gay marriage.
>> To read also: “Abortion: legally, the Supreme Court brings the United States back to the beginning of the XXe century'”
To challenge gay rights, judges could make arguments similar to those used to bury Roe vs Wade. Starting with the fact that the Constitution does not specifically mention these rights. “The Constitution makes no reference to abortion and none of its articles implicitly protects this right”, wrote the conservative judge Samuel Alito in the decision handed down Friday, just like the right to marry for two people of the same sex.
Diminishing privacy
Like Roe vs. Wade, the cases cited in his argument by Judge Thomas “maintain very strong links with the concepts of privacy, autonomy and freedom”, notes the law professor at the University of Colorado and LGBT+ rights expert Scott Skinner-Thompson. According to him, Friday’s decision paves the way for the weakening of the right to bodily autonomy and “could have harmful consequences for queer or transgender people, in particular for those who want to undergo surgery” within the framework of of a transition.
Conversely, “the conservative majority attaches paramount importance to religious freedom”, explains Simon Grivet, professor of history and civilization of the United States at the University of Lille. “We saw it again on Monday with the Court’s decision, which granted the case to a football coach who wanted to pray on the pitch after the matches when he had been dismissed.”
In 2020, the Supreme Court also refused to take up the case of a Kentucky clerk who opposed issuing marriage records to gay couples in the name of religious freedom. Judges Clarence Thomas and Samuel Alito explained that the Obergefell v. Hodges decision posed a threat to “the religious freedom of many Americans who believe that marriage is a sacred union between a man and a woman”.
For the moment, the temple of American law wants to be reassuring and writes black on white that previous case law unrelated to abortion is not called into question. “The other conservative judges specify that Friday’s decision is radical because it relates specifically to abortion which concerns the life of the fetus and prenatal existence”, details Simon Grivet.
>> To read also: “Testimonials: in Texas, abortion is already almost impossible”
Judge Thomas’s argument therefore represents the opinion of only one judge out of the nine – including six conservatives – who make up the Supreme Court. “I don’t think the Court as it is constituted can challenge gay marriage,” says Scott Skinner-Thompson, “particularly because conservative judge Brett Kavanaugh said that the end of the federal right to abortion did not threaten other rights”.
“A new front” for the LGBT+ community
However, the profound overhaul of the high court carried out under the presidency of Donald Trump, who appointed three judges during his mandate, makes certain lawyers and associations fear the worst, who have been worried for several months about an anti-LGBT+ climate. in some conservative states.
According to the ACLU, the largest American civil liberties association, the Supreme Court’s decision only opens “a new front in the merciless war waged against the LGBT + community”.
Texas Governor Greg Abbott, for example, ordered state agencies at the end of February to investigate the transition paths of minors, in order to criminalize parents accompanying their children in a gender transition. A month later, another Republican governor, Ron DeSantis, signed a law prohibiting the teaching of subjects related to sexual orientation or gender identity in Florida elementary schools.
>> To read: Disney criticizes a Florida law deemed anti-LGBT +, the State sanctions the group
The three liberal justices of the Supreme Court have themselves warned of a coming salvo of attacks on the rights of the American population. “We cannot understand how anyone can be confident that today’s decision will be the last of its kind,” the minority judges wrote.
According to a poll published this weekend by CBS, 57% of Americans believe that the Supreme Court could now tackle same-sex marriage and access to contraception.
“It seems unlikely in the short term because this kind of decision takes a lot of time,” explains Simon Grivet. “But we can imagine that in five or ten years, a State will come back to the question of marriage for all and create a dispute with the hope of bringing it up to the Supreme Court.”
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