Unbending the Moral Arc: Dismantling the ‘Capacious’ 14th Amendment Protection of LGBT Rights | New Jersey Law Journal – Law.com

LGBT Pride Month closed out this June with the unwelcome news that at least two U.S. Supreme Court Justices appear to be making good on their promise to unwind the LGBT community’s nearly four decades of progress toward achieving full equality. In Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022), the Court not only overruled two long-standing precedents that held that a woman has a Constitutional right to have an abortion under certain circumstances, but the majority went a step further by dismantling the legal underpinning of the 14th Amendment’s equal protection and due process “liberty” and “right to privacy” analyses from which LGBT rights have been sourced in the Court’s prior rulings.

The respect for precedent that informs stare decisis is a big deal at the U.S. Supreme Court. According to the Library of Congress, the Court has issued 234 rulings that overruled prior precedents since it first assembled in 1790. Cong. Rsch. Serv., “Constitution of the United States: Analysis and Interpretation,” https://constitution.congress.gov. However, the simultaneous abrogation of two or more decisions at once, as Dobbs commanded with both Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), has occurred only 24 times in that period. Id. (Indeed, Planned Parenthood itself overruled two then-recent SCOTUS decisions from 1983 and 1986.)