Frequently asked questions now that roe is dead.

Will my access to contraception be impacted by this decision?

We don’t know yet.  The majority claimed that this decision was specific to abortion because abortion is a unique act that involved potential life.  While the majority claims that this decision does not cast doubt on protections for contraceptive rights, the dissent says that such a claim is disingenuous.  Certainly, there could be claims that contraception also concerns “potential life.” Certainly, the reasoning of the Dobbs decision could, and likely would, be applied if a case concerning contraceptives reached the U.S. Supreme Court. A strict application of the rule set out in Dobbs would means that states get to decide whether or not their residents have access to contraceptives.

 Will my access to IVF and fertility care be impacted by this decision?

Possibly. The majority left the question of how this impacts IVF completely unanswered (which the dissent specifically pointed out).  The Court also explicitly stated that they are not currently defining when personhood begins.  Many states are now using this change as an opportunity to pass laws that will prohibit abortion.  Without intervention, many may be written in a way that defines things too broadly, and could sweep embryos and IVF  into the law’s application.  It’s possible that some legislatures may make that choice intentionally.  

Is marriage equality at risk?

Highly likely.  While the majority repeatedly points out that abortion is unique, and that the Dobbs ruling does not impact rulings on contraception or marriage, all of these rights have been found to be protected by the Supreme Court under what is known as the substantive due process clause found in the 14th Amendment of the U.S. Constitution, which states that no state may “deprive any person of life, liberty, or property, without due process of law.”  

Liberty in this context has been interpreted to include the protection of certain private parts of life, including sexual relationships, contraception, the choice whether and when to have children, how to raise children, the right to marriage, and abortion.  The Court has now held that the substantive due process clause does not protect abortion.  The Court reasoned that, rather than interpreting liberty and what substantive due process rights are protected by looking at the world in a modern context, it only protect what was protected when the words were written.  Since contraception, marriage equality, and similar rights were not protected at the time the 14th Amendment was ratified, this decision puts all of those rights into question.  In fact, Justice Clarence Thomas went out of his way to write a concurrence in which he specifically stated that he does not believe that the Constitution protects any substantive due process rights, and he invited people to bring other cases to overturn rulings that protect access to contraception and marriage equality.  

Kentucky, like many other states, would not need to take any action to immediately strip same sex couples of the right to marry. This is the case, because there is already that prohibition written into Kentucky law, and that will become effective in the event that Obergefell v. Hodges is overturned by the U.S. Supreme Court. The Kentucky Constitution specifically prohibits same-sex marriage, and states in section 233(a) that: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Further, same-sex marriages entered into in other states will, by statute, not be recognized in Kentucky. KRS § 402.045 states that “(1) A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. ”

What other impacts would a reconsideration of Obergefell have in Kentucky?

In the event that Obergefell is overturned, the Court will likely also reconsider Lawrence v. Texas, which was a case that held that statutes criminalizing same sex relationships was unconstitutional. Kentucky, like many other states, would not need to take any action to immediately criminalize being in a same-sex relationship. But for the Lawrence case, the following statute would be in full force and effect: KRS § 510.100 “(1) A person is guilty of sodomy in the fourth degree when he engages in deviate sexual intercourse with another person of the same sex.” Sodomy in the fourth degree is a Class A misdemeanor.

What can I do to protect my parental rights?

If you have children as a same-sex couple, a queer family, a single parent, a multi-parent family, or a family that has had children by assisted reproduction, talk to a family formation lawyer AS SOON AS POSSIBLE about what you can do to protect your family.  Under most circumstances, you will need to get a judgment from a court to protect your family—usually these judgments take the form of adoption. ONLY JUDGEMENTS would protect you both in your home state and throughout the U.S.  The Supreme Court in a unanimous decision in 2016 (which included Justices Thomas and Alito) held that the Full Faith and Credit Clause of the United States Constitution requires states to recognize adoption judgments from other states, regardless of their own public policy, so long as the state that issued the judgment had jurisdiction.  A BIRTH CERTIFICATE WITH YOUR NAME ON IT IS NOT A JUDGMENT, AND IS NOT ENOUGH.

What else should I be doing to protect my family?

Make sure you have estate planning documents in order—powers of attorney, advanced healthcare directives, and wills or trusts.  These are all legal documents that for your family to keep things more secure in the event that you pass away or are incapacitated and cannot speak for yourselves.