May 13, 2022

What the court’s overturning of Roe v. Wade could mean to New Mexico’s LGBTQIA+ community

Matthew Reichbach

Same-sex marriage ceremony where 12 couples were married in Albuquerque in 2013. Photo Credit: Matthew Reichbach

If the U.S. Supreme Court overturns Roe v. Wade, as is now expected this summer, the rights of the LGBTQIA+ community will be thrown into jeopardy, advocates believe.

In the leaked draft opinion that reveals the Supreme Court will likely overturn Roe v. Wade this summer, Supreme Court Justice Samuel Alito attacked the court’s arguments written into the Roe v. Wade decision affirming the right to abortion. He also took aim at Casey v. Planned Parenthood, the 1992 decision that reaffirmed Roe.

Roe v. Wade rests on the argument that individuals have a right to privacy and that the right can be found in the 14th Amendment and in other amendments. Subsequent rulings that effect LGBTQIA+ rights, such as Obergefell v. Hodges, the 2015 decision granting the right to same sex marriage, rests on a similar argument.

Alito, in his draft opinion, explicitly stated the argument to overturn Roe v. Wade should not be viewed as an open door to overturn other cases that also rest on the 14th Amendment’s Due Process Clause. He specifically alluded to Obergefell v. Hodges, as well as others that affect the rights of the LGBTQIA+ community.

Supreme Court Justice Sonia Sotomayor specifically brought up that concern during the December hearing late last year while talking to the lawyer who argued on behalf of the state of Mississippi. Mississippi specifically asked the court to overturn Roe v. Wade in the case it brought, appealing a lower court’s decision that ruled the state’s 15-week abortion ban was unconstitutional.

“I’m not trying to argue that we should overturn those [LGBTQIA+ related] cases,” Sotomayor said during the oral hearing. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”

Despite Alito’s protestations in the draft opinion that the logic underpinning Roe v. Wade is faulty but only applies to the 1973 landmark decision and not to others that rely on the same interpretation of the law, he does not convince everyone who is familiar with the legal ramifications.  

Marshall Martinez, executive director of Equality New Mexico, said the core of the issue, for both pregnant individuals and for LGBTQIA+ individuals, is bodily autonomy and that the Supreme Court’s draft decision, if it becomes final this summer, will affect everyone who has had to fight for it.

Adrien Lawyer, co-founder and executive director of Transgender Resource Center, called the issue of bodily autonomy, “the oldest conversation.”

Lawyer said the anti-transgender legislation appearing in various states in recent years, including the New Mexico legislature, is “not a coincidence.” A Republican-led effort to introduce a bill widely considered an anti-transgender bill into the legislature in 2021 failed in its first committee hearing.

But many LGBTQIA+ advocates said afterward that the comments during the committee hearing were brutal for the transgender children who listened.

Lawyer said his organization has been contacted by Texas cisgender parents who have transgender kids. He said they call because they are thinking about moving to New Mexico due to Texas’ unfriendly laws. In 2021, Texas codified the anti-transgender law prohibiting transgender children from playing in some school athletics that New Mexico lawmakers rejected.

But Martinez worries that, soon, no one in the LGBTQIA+ community will be safe.

“We have no end to the imagination and cruelty from the folks who really don’t want us to live our best lives,” Martinez said.

He said that in 13 states, an old “scare law” from the 1980s and 1990s remains in place and potentially enforceable that makes exposing an individual to the HIV virus a criminal act. Martinez said that the result of that law is that, in those states, there are individuals who don’t regularly obtain testing for the HIV virus.

“There’s a new wave of those attempts coming back,” Martinez said.

One way this can affect LGBTQIA+ individuals who reside in New Mexico is the fear to travel to other states. For instance, one of the court cases Alito alluded to, Lawrence v. Texas, was a 2003 case that ended state bans on sodomy.

That case also rests on the argument that underpins Roe v. Wade, affirming the right to privacy in the 14th Amendment.

But Martinez said that Texas and 11 other states still have bans on sodomy in place in state law books. Those laws are no longer enforceable since previous Supreme Court decisions, but if the law should be challenged and the case overturned, then he won’t feel safe traveling to Texas.

“Is it safe for me to travel to El Paso to visit my cousins?” He asked. “Are they going to have to come to Las Cruces to see me because it’s not safe for me, as an obviously queer person, to travel to Texas?”

Martinez said that, already, he is reconsidering his travel plans for this summer because of the rise in homophobic public policy. He pointed to the recent events in Florida where fights over homophobic laws has led Florida’s governor to reverse a long-standing relationship with Disney World and, as a result, raise taxes on some Florida residents.

“Look at how committed he [Florida Gov. Ron DeSantis] was to that policy so much so that he’s doing the thing that Republicans have said they would not ever do since at least the 1980s [raise taxes]. This new level of convictions around homophobia and transphobia will change a lot,” Martinez said.

Lawyer said he worries about that any escalation of transphobic laws in other states will increase the vulnerability of transgender individuals everywhere, including New Mexico.

“We know our folks are so vulnerable. When there’s any excuse for any hostility, I worry it will result in that,” Lawyer said.

Martinez mentioned the fact that he has friends who work in healthcare who remove their scrubs before leaving work because of the violence healthcare workers now encounter in public spaces due to the deeply partisan divide over mask wearing. He also brought up the escalation, nationwide, in anti-Asian hate crimes since the COVID-19 pandemic began and Pres. Donald Trump used anti-Asian racial slurs when referring to the virus.

Martinez said a “dystopian future” is exactly what the future feels like right now.

Lawyer referred to recent statistical data that shows that 34 percent of transgender children in New Mexico have experienced unstable housing; 27 percent reported sexual violence within the previous 12 months and 32 percent said they had tried to die by suicide.

Lawyer called it “terrifying.”

“This is horrible,” he said.

Lawyer said the transgender community across the country is already seeing greater incidents of violence.

“The last couple of years have been a high watermark for trans violence and anti-trans legislation. It’s already changed things in a bad way, all this anti-trans legislation,” he said.

Martinez said there are other reasons why the LGBTQIA+ community has concern about the court overturning Roe v. Wade. LGBTQIA+ individuals also become pregnant and, in some instances, need or want an abortion.

“Folks used to say, when I was growing up, ‘thankfully, we live in the U.S., not the Soviet Union. Thankfully we don’t live in East Germany. Now we live in a place where my parents in Las Cruces were saying, ‘thankfully we don’t live in Texas or Arkansas. Right now, we don’t live in Texas but it’s 30 miles away [from Las Cruces]. It keeps getting closer,” he said.

Even so, Martinez said that given the temperature of the nation, even in a state where laws targeting the LGBTQIA+ community generally fail, it’s time for everyone to be worried.

“I’ve learned to not be naïve enough to think it’s not impossible [to come here],” he said.