“Is that legit?” No, it’s entirely insane, as big a legal non-sequitur as any demagogue could conjure up from the leaked draft in the Dobbs case. Small wonder that President Ignorant T. Demagogue seizes the opportunity here to toss out this effluvium, warning people that LGBTQ children could be banned from classrooms unless we allow unfettered access to abortion.
You know what could keep LGBTQ kids out of classrooms? Scraping them out of the womb. But I digress …
Joe Biden claims that overturning Roe vs. Wade will lead to states banning LGBT children from being in the same classrooms as "other children." pic.twitter.com/hPFfSA4wmk
— Townhall.com (@townhallcom) May 4, 2022
If you want to know what this is really about, read Allahpundit’s preceding post. Democrats need to stoke fear and outrage in the midterms, as well as fundraising in an economic and security environment that threatens to dismantle them at every level. The end of Roe isn’t moving the needle, so now we can expect Biden and his team to insist that sending abortion policy back to the democratic institutions is the end of the world as we know it. LGBTQ kids hardest hit, it seems.
We’ll get to why this take is entirely ignorant in a moment, but first off let’s note its appeal in the media as well. Politico offered up a brief take on it today:
“Are LGBTQ+ rights on the chopping block too?”
Many liberal legal activists think that if Roe is overturned on the basis Alito suggests in his draft, that the right to same-sex marriage the court announced in a 2012 decision could be in jeopardy. That right is based at least in part on a right to privacy that the Supreme Court has found implicit in the Constitution since the 1960s and played a key role in Roe. Alito’s opinion also argues that the courts shouldn’t endorse rights that don’t have a long tradition in U.S. history and same-sex marriage doesn’t seem to fit that bill.
Here’s more on how Biden’s warning that “other basic rights” could come next.
Roe and its antecedent Casey were entirely predicated on a conjectural argument about privacy and the Fourth Amendment. The decisions that matter most in the marriage and access decisions rely on the Fourteenth Amendment and the Equal Protection Clause (EPC), a much stronger and constitutionally reliable foundation. That is true of Loving v Virginia, the case that finally overruled laws against interracial marriage (and preceded Roe, by the way), and it’s also true of Obergefell, which forced all states to recognize same-sex marriage. The issue of access to public places for protected classes in numerous cases also rests on the EPC, not privacy considerations.
In fact, the issue in all of these cases involve very public engagements, not private behavior. Loving and Obergefell struck down prohibitions on public, government endorsement of marriage based on the composition of the partnership. Public access to schools and other facilities are the opposite of privacy considerations. As Alito points out in the opinion, neither court in Roe or Casey even attempted to root the decision in the 14th Amendment or the EPC.
Where a Dobbs reversal might apply to previous decisions would be with privacy-based rulings on Griswold, which dealt with contraception, and with Lawrence v Texas, which struck down sodomy laws in Texas, and for that matter Lawrence v Kansas on same-sex relationships. Those relied on privacy arguments too, but neither of them dealt with the killing of human life. In fact, Alito addresses that point directly in his opinion, as Ed Whelan points out in his analysis at National Review:
Abortion is not an integral part of a broader right to privacy. What sharply distinguishes abortion from the rights recognized in cases like Loving v. Virginia and Griswold v. Connecticut is that abortion destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.” Those cases do not support a right to abortion. Our conclusion that the Constitution does not confer such a right “does not undermine them in any way.” (See also p. 62.) N.B.: Lots of folks who haven’t read the draft have been quick to contend otherwise. (Pp. 30-35.)
In other words, the other cases involved no other stakeholders with legitimate standing. Abortion, however, ends a human life that is separate from that of the mother, even if it is dependent on her. Is that enough to prevent an abortion? Alito’s argument is that the constitution doesn’t speak to that. Instead, Alito acknowledges that states have a rational interest in protecting human life, and that interest should be shaped by public policy in the absence of any constitutional language that might infringe on democratic institutions of government otherwise:
State regulations of abortion shall be subject to deferential rational-basis review. Mississippi’s law is constitutionally permissible under that standard.
Legitimate state interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.
The issue of school access for children is an absurd non-sequitur, in other words. There may well be plenty of reasons to oppose the eventual Dobbs decision, no matter what it eventually turns out to be. The fact that Biden and his team are already so desperate as to demagogue it to this extent tells you that they’re intellectually bankrupt, as well as politically bankrupt.