A Visit to the Dobbs V. Jackson Women’s Health Organization Decision
by Amanda Murray
Originally published in Res Ipsa Loquitur.
One of the most controversial cases in the 21st century made its way through the judicial system and landed in the Supreme Court of the United States. By now, every person in the United States has heard of Dobbs v. Jackson Women’s Health Organization. In a landmark decision, SCOTUS held the Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. The controversy of this case and holding continues as organizations, political figures, and the public speak out for and against the decision. One thing is certain, this holding gave the regulation of abortion at all gestational stages to the states to control and has left many with questions and uncertainty, especially the LGBTQ+ community.
In Dobbs, the Court analyzed whether the constitution implicitly confers a right to obtain an abortion. The Dobbs decision explored the reasoning and rationale of Roe v. Wade, which is the case that set the precedent, since 1973, that established a woman’s right to an abortion. The Dobbs Court also dissected the reasoning and rationale of Planned Parenthood of Southeastern Pa. v. Casey, the Due Process Clause and substantive rights, along with the five factors that should be considered when overruling precedent. This case was a 6-3 decision with Justice Alito writing for the majority and Justices Gorsuch and Barrett joining. Justices Thomas, Kavanaugh, and Roberts wrote opinions that concurred, while Justices Sotomayor, Breyer, and Kagan dissented. The 70+ page majority opinion is followed by additional concurring opinions and a dissenting one as well, combined to be a 200+ page read that surely poses reasoning and rationale that we are likely to hear again. For the LGBTQ+ community, one of the most concerning parts of that decision was Justice Thomas’s concurrence that states, in part:
“…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
While the holding in all of those cases is important, the Obergefell case conferred the right of same-sex marriage and established marriage equality. Justice Thomas’s concurring opinion has the LGBTQ+ community questioning if Obergefell will be overturned, and if so, what would happen to same-sex marriages, the legal relationship of children from same-sex marriages, employment benefits, and the other rights that derive from the legal relationship of a marriage. Since Dobbs, concern and questions about these issues have certainly surfaced in my practice from not only other legal minds, but from our LGBTQ+ clients as well. Navigating these issues with clients can be challenging, but taking additional legal steps, if possible, to further secure legal relationships can be a way to address some of these concerns in the wake of the Dobbs decision.
When counseling LGBTQ+ clients, it is important to take a look at things from an estate planning perspective. It is vital to execute estate planning documents, including a Durable Power of Attorney for Healthcare and Finances, as well as a Will, and a Trust if necessary. These documents create another layer of legal connection between spouses and families. This includes looking at assets to see how they are titled. For those clients who share children together, it may be necessary to obtain a Court Order of Parentage or move forward with an Adoption. This stands true even if both parents are on the birth certificate. In Michigan, being on a child’s birth certificate is evidence of parentage but does not fully secure parental rights and can always be challenged. If parents are legally married, a Stepparent Adoption can create another layer of legal protection for parental rights. In some cases, a domestic partnership agreement may need to be explored.
Many client situations are different, and families form in a variety of ways, but being privy to the legal complexities that these situations present and being able to issue spot in the wake of Dobbs is key. While the Dobbs decision did show that longstanding precedent can be overturned, the fact remains that marriage equality remains the law of the land today; there just may be additional steps to take to make our clients feel more secure.
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