What the Roe v. Wade overturn means for us and what we can do about it

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VISHNICK MCGOVERN MILIZIO LLP

Now that Roe v. Wade has been overturned and Americans no longer have a federally protected right to an abortion, many of us in the New York LGBTQ+ community have been wondering whether it will affect us and whether more of our constitutional rights are in jeopardy. Unfortunately, the answer to both is yes. But we can do something about it.

First and foremost, reproductive rights are everyone’s rights. The Court’s decision will have a direct impact on reproductive freedom for gay women as well as non-binary and transgender individuals, who are more likely to seek out abortion care than cisgender heterosexuals. Clinics that perform abortions often also provide gender-affirming health care to trans people, such as hormones and puberty blockers.

The court’s decision will also likely affect LGBTQ+ people looking to start or expand their family through surrogacy. Many surrogates live in other states, and it’s unclear yet what rights they and the prospective parents will have. It might also allow certain states to restrict IVF treatments, if their law holds that human life begins at fertilization.

In his concurring opinion to the decision, Justice Clarence Thomas wrote that the landmark SCOTUS ruling in Griswold v. Connecticut, which established in 1965 the right to contraceptives, was a “demonstrably erroneous decision” and should be reconsidered. If Griswold is overturned, New Yorkers may remain protected, but when visiting other states they might not be able to obtain condoms, morning-after pills, or IUDs.

Equally frightening, Thomas argued the same about Lawrence v. Texas, which in 2003 established the right to private sexual acts, and 2015’s Obergefell v. Hodges, which established the right of same-sex individuals to marry. There’s little doubt that this is an open invitation for interest groups to bring up cases before the court that challenge them.

All this follows a statement by Thomas and Justice Samuel Alito made in December 2020, calling the Obergefell decision “undemocratic” and claiming it’s had “ruinous consequences for religious liberty.” Last October they were joined on the bench by Amy Coney Barrett, who’d similarly voiced opposition to Obergefell, as well as to 2020’s Bostock v. Clayton County, which ruled that Title VII of the 1964 Civil Rights Act guarantees workplace anti-discrimination protections to gay and transgender employees.

This year alone, 240 anti-LGBTQ bills have been filed across the US — more than three a day — with half targeting transgender people. These have real consequences; as of April, providing transgender healthcare in Alabama can result in felony charges.

This is going on locally too. In June, the Long Island Smithtown Library banned all Pride books and displays in children’s sections. After community outrage they reversed their ban, but the intent is clear.

As the saying goes, it’s not paranoia when they’re really after you.

So, what can be done? We must come together, from every age, gender and walk of life, and fight for what’s right. We can only do this with actual, direct involvement. “Likes” aren’t enough.

HRC (Human Rights Campaign) is the largest LGBTQ+ advocacy organization in the US. Please support them. Donations help, but they also have over 30 volunteer-based committees you can join that engage individuals, educate the public, work to build relationships with ally businesses and organizations, raise funds, and turn out voters to elect pro-Equality candidates. You can learn more at hrcgreaterny.org.

Other great causes that could really use your support and involvement are the ACLU, which is filing litigation in state after state to protect abortion rights, and any one of the city’s homeless LGBTQ+ youth organizations or shelters, which are already burdened in the wake of increasing hostility in other states.

Our community has faced daunting battles before. But we fought them, and we won. Together we’ll win this one too.

Joseph Milizio is the Managing Partner of Vishnick McGovern Milizio LLP and head of the LGBTQ Representation practice. He also leads the firm’s Surrogacy, Adoption, and Assisted Reproduction and Business & Transactional practices. He can be reached at jmilizio@vmmlegal.com and 212.759.3500 x108.

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