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Potential Effects of Dobbs v. Jackson Women’s Health on Civil Commitment Law
Published online by Cambridge University Press: 12 February 2024
Abstract
Since the publication of the U.S. Supreme Court’s decision in Dobbs v Jackson Women’s Health in June of 2022, much attention has been paid to the direct effects of that decision on reproductive health care for pregnant or potentially pregnant individuals; and to the potential effects of the Court’s approach in Dobbs to other established precedent related to privacy and autonomy, such as rights to contraception and marriage equality. This Article will explore another potential negative consequence of Dobbs; its potential effect on the constitutional parameters of the law of civil commitment and involuntary medication of the mentally ill.
The foundational Supreme Court case establishing the parameters of the State’s right to involuntarily commit an individual to a mental institution was decided only two years after Roe v. Wade. In 1975, the Supreme Court in O’Connor v Donaldson held that an individual has a liberty interest in “prefer[ring] one’s home to the comforts of an institution,” and that a State could not, “without more,” confine a non-dangerous individual. The two-prong test of requiring a showing of both mental illness and dangerousness to one’s self or to others has remained the cornerstone of civil commitment law ever since.
The language and analysis of O’Connor is similar to that of Roe, the abortion rights case overturned by Dobbs. In particular, the grounding of the right to avoid civil commitment in the individual liberty and privacy interests are common themes in the two cases. The current Court, in its decision in Dobbs, has cast substantial doubt on the continued vitality of that analysis; and one can easily imagine a reconceptualization of O’Connor along the lines of Dobbs that substantially alters the requirements for civil commitment. In particular, the reliance in Dobbs and other recent Supreme Court opinions on historical precedent as a linchpin of originalist analysis could lead the Court to search for justifications in colonial or 19th-century mental health practices, time periods which predate modern psychiatric science.
This Article will explore the parallels in approach between Roe and O’Connor, and will suggest ways in which the post-Dobbs Supreme Court majority might disrupt the civil commitment status quo, including potential expansion of civil commitment or other detention of pregnant individuals for the protection of the fetus; and possible relaxation of the dangerousness requirement for civil commitment articulated in O’Connor.
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References
1 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2228 (2022).
4 Roe v. Wade, 410 U.S. 113 (1973).
5 O’Connor v Donaldson, 422 U.S. 563 (1975).
6 Id. at 575.
7 Id. at 576.
8 See, e.g., Ronald D. Rotunda & John E. Nowak § 17.9(a)(vii) Commitment for Mental Care, in 3 Treatise on Const. L. (“When the state seeks to commit someone for mental care on an involuntary basis, it must establish a fair procedure for determining that the individual is dangerous to himself or others due to a mental problem.” (citations omitted).
9 Addington v. Texas, 441 U.S. 418 (1979).
10 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).
11 See infra notes 83 - 84 and accompanying text.
12 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2228, 2257 (2022).
13 See Deepa Shivaram, The Movement Against Abortion Rights is Nearing its Apex. But it Began Way Before Roe, NPR (May 4, 2022, 5:00 A.M.), https://www.npr.org/2022/05/04/1096154028/the-movement-against-abortion-rights-is-nearing-its-apex-but-it-began-way-before [https://perma.cc/AUW7-XMXD].
14 See, e.g., Elizabeth A. Cavendish, Casey Reflections, 10 Am. U. J. Gender Soc. Pol’y & L. 305, 305 (2002) (“Women in the United States today have fewer reproductive rights than their mothers had in 1973, and the status of those rights has only become more imperiled since Casey.”).
15 Dobbs, 597 U.S. at 2279
16 See Gestational Age Act, Miss. Code Ann. §41–41–191 (West 2018) (“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform … or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”).
17 See generally Adeel Hassan, What to Know About the Mississippi Abortion Law Challenging Roe v. Wade, N.Y. Times (May 6, 2022), www.nytimes.com/article/mississippi-abortion-law.html [https://perma.cc/Z5XV-3PCB] (“In recent years, Republican-controlled states have passed … legislation [similar to Mississippi’s] only to have the laws struck down in appeals courts because they were in conflict with [Roe and Casey]. Those states, in effect, were vying for the chance to be heard by the [C]ourt.”). See also Sybil Shainwald, Reproductive Injustice in the New Millennium, 20 Wm. & Mary J. Wom. & L. 123 (2013).
18 Jackson Women’s Health Org. v. Currier, 349 F.Supp.3d 536, 540 (S.D. Miss. 2018).
19 Id. at 545.
20 Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019).
21 Dobbs v. Jackson Womens’ Health Organization, 141 S.Ct. 2619 (2021).
22 See Jackson Women’s Health Org., 349 F.Supp.3d at 542 (“[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”).
23 The framing of the right at issue as a “right to abortion,” rather than more broadly as a right to bodily autonomy, seems to be an intentionally narrow framing of the issue at hand.
24 Dobbs, 597 U.S. at 2242.
25 Id. at 2246.
26 Id. (citations omitted).
27 Id. at 2247-48 (“Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the ‘liberty’ protected by the Due Process Clause because the term ‘liberty’ itself provides little guidance.”).
28 The historical analysis undertaken by the majority opinion in Dobbs has been heavily criticized since the leaking of that opinion and its eventual release. See, e.g., Press Release, American Historican Association & Organization of American Historians, History, the Supreme Court and Dobbs v. Jackson: Joint Statement From the AHA and the OAH (July 2022), https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022) [https://perma.cc/2T2U-X2P5] (“The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The court’s majority opinion in [Dobbs] does not meet those standards and has therefore established a flawed and troubling precedent.”).
29 Dobbs, 597 U.S., at 2248.
30 Id. at 2285.
31 Id. at 2284.
32 This critique of the Roberts court predates Dobbs. See, e.g., Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, 82 Tulane L. Rev. 1533, 1537-38 (2008).
33 See generally David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregiously-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/BJV5-B9UQ].
34 Donaldson v. O’Connor, 493 F.2d 507, 510 (5th Cir. 1974).
35 Id.
36 O’Connor v. Donaldson, 422 U.S. 563, 568-569 (1975).
37 Donaldson, 493 F.2d, at 510.
38 O’Connor v. Donaldson, 419 U.S. 894 (1974).
39 O’Connor, 422 U.S. at 576.
40 See, e.g., Grant Morris, The Supreme Court Examines Civil Commitment Issues: A Retrospective and Prospective Assessment, 60 Tul. L. Rev. 927 (1986).
41 See The Impact of the Supreme Court’s Dobbs Decision on Abortion Rights and Access Across the
United States, Before the H. Comm. On Oversight and Reform (2022) (statement of Rep. Gerald E. Connolly, Member, H. Comm. On Oversight and Reform) https://docs.house.gov/meetings/GO/GO00/20220713/114986/HHRG-117-GO00-MState-C001078-20220713.pdf [https://perma.cc/D2SQ-EWZS]. Others have noted that, while diminishment of citizens’ rights by the Court is rare, it is not unprecedented. See Christopher M. Richardson, Opinion, Dobbs Isn’t The First Time The Supreme Court Took Away Key Rights, L.A. Times (July 15, 2022), https://www.latimes.com/opinion/story/2022-07-15/supreme-court-abortion-civil-rights [https://perma.cc/RC7M-6NSC] (comparing Dobbs to the Civil Rights Cases of 1883).
42 See Eugene Declercq et al., The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomes of States Proposing New Abortion Restrictions, The Commonwealth Fund (Dec. 14, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/us-maternal-health-divide-limited-services-worse-outcomes [https://perma.cc/B7D8-LR6C].
43 See Nandita Bose, Roe v. Wade Ruling Disproportionately Hurts Black Women, Experts Say, Reuters (June 27, 2022), https://www.reuters.com/world/us/roe-v-wade-ruling-disproportionately-hurts-black-women-experts-say-2022-06-27/ [https://perma.cc/44D6-9TVU]; Keon L. Gilbert et al, Dobbs, Another Frontline For Health Equity, Brookings (June 30, 2022), http://www.brookings.edu/blog/how-we-rise/2022/06/30/dobbs-another-frontline-for-health-equity/ [https://perma.cc/53CW-NVF5].
44 Joan E Greve, Trump Justices Accused of Going Back On Their Word on Roe – But Did They?, The Guardian (May 5, 2022), https://www.theguardian.com/law/2022/may/05/trump-justices-abortion-roe-v-wade-gorsuch-kavanaugh-coney-barrett [https://perma.cc/KP5D-NNWB]; Lisa Mascaro, Is Roe V. Wade ‘Settled’ Law? Justices’ Earlier Assurances Now In Doubt, PBS News Hour (Dec. 3, 2021), https://www.pbs.org/newshour/health/is-roe-v-wade-settled-law-justices-earlier-assurances-now-in-doubt [https://perma.cc/YCR2-AXYA].
45 See Senator Collins’ Statement on Leaked Dobbs v. Jackson Women’s Health Organization Draft Decision, Susan Collins (May 3, 2022), available at https://www.collins.senate.gov/newsroom/senator-collins-statement-on-leaked-dobbs-v-jackson-womens-health-organization-draft-decision [https://perma.cc/6AQB-RAJC ].
46 See Annenberg Public Policy Center, Over Half of Americans Disapprove of Supreme Court as Trust Plummets, Annenberg School for Public Communication U. Penn. (Oct 10, 2022), https://www.asc.upenn.edu/news-events/news/over-half-americans-disapprove-supreme-court-trust-plummets [https://perma.cc/E4RB-NXYR].
47 See supra note 26 and accompanying text.
48 See Joshua Zeitz, How the Founders Intended to Check the Supreme Court’s Power, Politico (July 3, 2022), https://www.politico.com/news/magazine/2022/07/03/dont-expand-the-supreme-court-shrink-it-00043863 [https://perma.cc/AY23-T4W3].
49 See National Right to Life Praises the Supreme Court’s Decision in Dobbs v. Jackson Today’s Ruling Overturns High Court’s 1973 Roe v. Wade Decision, Nat’l Right to Life (June 24, 2022), https://www.nrlc.org/communications/dobbs/ [https://perma.cc/C3L5-QQ9B].
50 See Nicole Dube et al., State Abortion Laws Enacted Post-Dobbs Decision, Connecticut Office of Legislative Research (Sept. 29, 2022), https://cga.ct.gov/2022/rpt/pdf/2022-R-0227.pdf.
51 See Cole, supra note 33.
52 See David Ingold et al., Biden Nominee Jackson Could Serve for Decades With a Conservative Supreme Court Majority, Bloomberg (Feb. 25, 2022), https://www.bloomberg.com/graphics/2022-supreme-court-justice-stephen-breyer-retirement/?leadSource=uverify%20wall [https://perma.cc/YA2E-CTZ5].
53 See Sarah Rosenbaum et al., Dobbs: The Immediate Aftermath and the Coming Legal Morass, The Commonwealth Fund: To the Point (June 17, 2022), https://www.commonwealthfund.org/blog/2022/dobbs-immediate-aftermath-and-coming-legal-morass [https://perma.cc/KA8M-B2UM].
54 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277 (2022) (“[T]he Solicitor General suggests that overruling [Roe and Casey] would ‘threaten the Court’s precedents holding that the Due Process Clause protects other rights.’ … That is not correct[.]”) (citations omitted).
55 See id. at 2239 (“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”).
56 Id.
57 Id. at 2317-50 (Sotomayor, J., Breyer, J. & Kagan, J. dissenting).
58 Id. at 2332.
59 Id. at 2350 (The Dobbs majority “places in jeopardy other rights, from contraception to same-sex intimacy and marriage.”).
60 Id. at 2300-01 (Thomas, J., concurring in judgment).
61 Id. at 2301.
62 Id. (“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents[.]”).
63 Griswold v. Connecticut, 281 U.S. 479, 485-86 (1965).
64 Lawrence v. Texas, 539 U.S. 558, 578 (2003).
65 Obergefell v. Hodges, 576 U.S. 644, 681 (2015).
66 Dobbs,142 S. Ct. at 2310 (Thomas, J. concurring in judgment).
67 Indeed, after the Dobbs decision, H.R. 8373, the Right to Contraception Act, was introduced in Congress, in part as a response to Justice Thomas’ concurrence in Dobbs. See H.R.8373, 117th Cong. § 3(25) (2d Sess. 2022).
68 See Marc Spindleman, The ‘Dobbs’ Promise Gets Tested at the Supreme Court, The Am. Prospect (Dec. 1, 2022), http://prospect.org/justice/dobbs-promise-gets-tested-at-the-supreme-court/ [https://perma.cc/8YRT-8JAK] (discussing the case of 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021), cert granted 142 S.Ct. 1106 (2022), a First Amendment challenge to a Colorado anti-LGBTQ discrimination statute). Post-Dobbs, Congress passed, and President Biden signed, the Respect For Marriage Act, codifying some limited protections for same-sex marriage into federal law. See Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305.
69 See At Liberty Podcast, How Dismantling Roe Puts Interracial Marriage at Risk, ACLU (June 9, 2022), https://www.aclu.org/podcast/how-dismantling-roe-puts-interracial-marriage-at-risk [https://perma.cc/QXC8-HJJV] (“the United States has a long history of criminalizing, surveilling and controlling Black and brown families and the mixing of races.”).
70 New York State Rifle & Pistol Assoc. v. Bruen, 142 S.Ct. 2111 (2022).
71 Id. at 2123.
72 The Bruen majority opinion was authored by Thomas, and joined by Roberts, Alito, Gorsuch, Kavanaugh and Barrett, with Breyer, Sotomayor and Kagan dissenting. Id. The Dobbs majority opinion was written by Alito, and joined by Gorsuch, Kavanaugh, Barrett and Thomas and Chief Justice Roberts wrote an opinion concurring in the result, as did Justices Kavanaugh and Thomas, and Breyer, Sotomayor and Kagan similarly dissented. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
73 Bruen, 142 S.Ct. at 2122 (“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.”).
74 Id. at 2125-26.
75 The Court’s historical analysis in Bruen has been criticized, just as its historical analysis in Dobbs was, as being insufficiently historically rigorous, and being merely a pretext for the politically expedient result of expanding the scope of Second Amendment rights.
76 Bruen, 142 S.Ct. at 2130 (“our focus on history also comports with how we assess many other constitutional claims.”). But see id., 142 S.Ct. at 2176 (Breyer, J., Sotomayor, J. & Kagan, J., dissenting) (“ the Court today is wrong when it says that its rejection of means-end scrutiny and near-exclusive focus on history ‘accords with how we protect other constitutional rights.’”) (citation omitted).
77 See Steven Lubet, Is The Supreme Court Turning the Constitution Into a Homicide Pact, The Hill (Nov. 30, 2022, 8:00 A.M.), https://www.thehill.com/opinion/judiciary/3755180-is-the-supreme-court-turning-the-constitution-into-homicide-pact [https://perma.cc/FT5P-HC9U].
78 See United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482, at *1 (W.D. Tex. Sept. 19, 2022).
79 See William Melhado, Federal judge in Texas rules that disarming those under protective orders violates their Second Amendment rights, The Tex. Trib. (Nov. 14, 2022), https://www.texastribune.org/2022/11/14/texas-judge-domestic-abusers-second-amendment/ [https://perma.cc/Y92Q-P4LM].
80 See, e.g., Bruen, 142 S.Ct. at 2131-32 (“[W]e will consider whether ‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation[.]”).
81 See Quiroz, 2022 WL 435282, at *1 (“There are no illusions about this case’s real-world consequences—certainly valid public policy and safety concerns exist. Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework.”).
82 See Justices 1789 to Present, Sup. Ct. U.S., https://www.supremecourt.gov/about/members_text.aspx [https://perma.cc/6JCD-RQH5] (last visited Mar. 12, 2023).
83 For histories of the Burger Court, see generally Vincent Blasi, The Burger Court: The Counter-Revolution That Wasn’t (Yale Univ. Press 1983); Vincent Blasi, The Burger Years: Rights and Wrongs in the Supreme Court 1969-1986 (Herman Schwartz ed., Viking Penguin 1987).
84 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2245 (2022).
85 Albert Deutsch, The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times 66 (Columbia Univ. Press, 2nd ed. 1949).
86 Id. at 16.
87 Id. at 62 (discussing the Pennsylvania Hospital, established in 1751.).
88 Id. at 62-65.
89 Id. at 59.
90 See, e.g., Paul Chodoff, Book Review, Bulletin of the History of Medicine, 72 Johns Hpkins Univ. Press 580 (No. 3, Fall 1998) (reviewing Theresa C. Smith and Thomas A. Oleszczuk, No Asylum: State Psychiatric Repression in the Former USSR (New York Univ. Press 1996)).
91 See Cecilia Tasca et al., Women and Hysteria in the History of Mental Health, 8 Clinical Prac. & Epidemiology in Mental Health 110 (2012).
92 Id. at 110.
93 See id. See, e.g., Emily Friedman, Can Clinton’s Emotions Get the Best of Her? How voters interpret N.Y. senator’s appearances could affect campaign, ABC News (Jan. 7, 2008), https://abcnews.go.com/Politics/Vote2008/story?id=4097786&page=1 [https://perma.cc/84GU-V4EK].
94 See Gary Greenberg, The Book of Woe (Plume, 2013). See also Africans in America, PBS (last visited Mar. 2, 2023) (republishing Dr. Cartwright, Diseases and Peculiarities of the Negro Race, 11 De Bow’s Rev. (1851)), https://www.pbs.org/wgbh/aia/part4/4h3106t.html [https://perma.cc/B5M2-KR4L].
95 See Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5 Behav. Sci. 565, 565-566 (2015).
97 See infra note 63 and accompanying text.
98 Darby Bean, New Ordinance Aimed At Clearing Sidewalks, Parks Doesn’t Solve Louisville’s Root Homelessness Issue, Critics Say, available at Darby Bean, New Ordinance Aimed At Clearing Sidewalks, Parks Doesn’t Solve Louisville’s Root Homelessness Issue, Critics Say, WDRB (Dec. 16, 2022), https://www.wdrb.com/news/new-ordinance-aimed-at-clearing-sidewalks-parks-doesnt-solve-louisvilles-root-homelessness-issue-critics-say/article_1f3845fc-7d63-11ed-aa14-7b7d1d5ed305.html [https://perma.cc/NP5Z-F9Q5].
99 See generally, Memo to Members, Supreme Court Upholds Ruling, Homeless People Cannot Be Criminally Punished for Sleeping Outside if No Alternatives Exist, Nat’l Low Income Hous. Coal. (Dec. 23, 2019), https://nlihc.org/resource/supreme-court-upholds-ruling-homeless-people-cannot-be-criminally-punished-sleeping [https://perma.cc/KQ7Q-RZSL].
100 See Hassan Kanu, New York Plan for Forced ‘Removal’ of Mentally Ill Tests Limits of the Law, Reuters (Dec. 8, 2022), https://www.reuters.com/legal/government/new-york-plan-forced-removal-mentally-ill-tests-limits-law-2022-12-08/#:~:text=(Reuters)%20%2D%20New%20York%20City,its%20susceptibility%20to%20police%20abuse [https://perma.cc/JV8G-SQNK].
101 Megan Testa & Sara G. West, Civil Commitment in the United States, 7 Psychiatry 30, 32-33 (2010) (“[I]t is commonly interpreted that dangerousness refers to physical harm to self (suicide) or physical harm to others (homicide), and that the requirement for imminence means that the threat must be likely to occur in the close future.”).
102 See Andy Newman & Emma G. Fitzsimmons, New York City to Involuntarily Remove Mentally Ill People from Streets, N.Y. Times (Nov. 29, 2022), https://www.nytimes.com/2022/11/29/nyregion/nyc-mentally-ill-involuntary-custody.html#:~:text=the%20main%20story-,New%20York%20City%20to%20Involuntarily%20Remove%20Mentally%20Ill%20People%20From,posed%20no%20threat%20to%20others [https://perma.cc/NA3B-QG36].
103 For another example, California’s Governor Gavin Newsom recently declared himself “exhausted” by demands for the protection of civil liberties of the unhoused mentally ill in the civil commitment process, declaring that “[t]heir point of view is expressed by what you see on the streets and sidewalks all across the state.” Janie Har & Adam Beam, California Governor OKs Mental Health Courts for Homeless, AP News (Sept. 14, 2022), https://apnews.com/article/health-california-san-francisco-gavin-newsom-mental-0e68288d97959f9ceeb5c5683afa092b [https://perma.cc/KRT4-U3YR].
104 See Moira Donegan, Alabama is Jailing Pregnant Marijuana Users to ‘Protect’ Fetuses, The Guardian (Sept. 14, 2022), https://www.theguardian.com/commentisfree/2022/sep/12/alabama-jailing-pregnant-marijuana-users-protect-fetuses [https://perma.cc/J6KK-GFNR] .
105 Although Alabama recently became the 36th state to enact a medical marijuana law, cannabis is still illegal for recreational purposes. S. Res. 464, 2021 Leg., Reg. Sess. (Al. 2021).
106 See Donegan, supra note 104.
107 Id.
108 Id.
109 Id.
110 Id.
111 Amy Yurkanin, Alabama County Ends Practice of Keeping Pregnant Women in Jail Awaiting Rehab Beds, AL News (Sept. 26, 2022), https://www.al.com/news/2022/09/alabama-county-ends-practice-of-keeping-pregnant-women-in-jail-until-trial.html [https://perma.cc/8FUU-REPF].
112 Devon Minnick et. al., Disorder in the Post-Roe World? … “It is so Ordered” by the Dobbs Court, Am. Health L. Ass’n (Aug. 19, 2022), https://www.americanhealthlaw.org/content-library/health-law-weekly/article/50b326b2-e6ee-45e1-89e3-cab572f818c6/disorder-in-the-post-roe-world-it-is-so-ordered-by [https://perma.cc/5GCS-257C].
113 Kelsey Butler & Ella Ceron, Colorado Club Shooting Follows Rise in Anti-LGBTQ Rhetoric, Violence, Bloomberg: Equity (Nov. 21, 2022), 3:43 P.M), https://www.bloomberg.com/news/articles/2022-11-21/colorado-club-shooting-follows-rise-in-anti-lgbtq-rhetoric-violence?leadSource=uverify%20wall [https://perma.cc/KTC9-8HZ2].
114 See Ariel Sobel, What Is QAnon and How Does It Affect LGBTQ People?, The Advocate: Politics (Aug. 3, 2018, 2:11 P.M,), https://www.advocate.com/politics/2018/8/03/what-qanon-and-how-does-it-affect-lgbtq-people [https://perma.cc/ZY5W-KYCK].
115 See, e.g., Alex Paterson, Fox News attacked LGBTQ people over 100 days in the first half of 2022, L.A. Blade (July 25, 2022) https://www.losangelesblade.com/2022/07/25/fox-news-attacked-lgbtq-people-over-100-days-in-the-first-half-of-2022/ [https://perma.cc/F6N9-UE36]; Ben Goggin & Pat Tenbarge, Right-wing influencers and media double down on anti-LGBTQ rhetoric in the wake of the Colorado shooting, NBC News (Nov. 23 2022), https://www.nbcnews.com/tech/internet/right-wing-influencers-media-double-anti-lgbtq-rhetoric-wake-colorado-rcna58371[https://perma.cc/UK4Y-3GUX].
116 See, e.g., Patrick Saunders, Georgia GOP’s Top Candidates Move Harder Right On LGBTQ Issues In Election’s Final Days, WABE: The LGBTQ Vote (Oct. 27, 2022), https://www.wabe.org/georgia-gops-top-candidates-move-harder-right-on-lgbtq-issues/ [https://perma.cc/LDH2-2EN8]; Trip Gabriel, After Roe, Republicans Sharpen Attacks on Gay and Transgender Rights, N.Y. Times (July 22, 2022), https://www.nytimes.com/2022/07/22/us/politics/after-roe-republicans-sharpen-attacks-on-gay-and-transgender-rights.html [https://perma.cc/DZ83-YWAW].
117 See, e.g., Caitlyn Kim, Lauren Boebert Defends Her Past Anti-LGBTQ And Anti-Trans Tweets During KOA Radio Interview In Wake Of Club Q Shooting, CPR News (Nov. 22, 2022), https://www.cpr.org/2022/11/22/lauren-boebert-defends-anti-lgbtq-anti-trans-tweets-club-q-shooting/ [https://perma.cc/LUU5-EC8A].
118 Richard Wolf, Gay Marriage Victory At Supreme Court Triggering Backlash, USA Today (May 29, 2016), https://www.usatoday.com/story/news/politics/2016/05/29/gay-lesbian-transgender-religious-exemption-supreme-court-north-carolina/84908172/ [https://perma.cc/ZT3C-SZNM]. But see Emily Kayzak & Matthew Stange, Backlash or a Positive Response?: Public Opinion of LGB Issues After Obergefell v. Hodges, 65 J. Homosexuality 2028, 2034 (2018) (finding that public support for marriage equality was higher post-Obergefell and disputing the backlash narrative).
119 Matt Lavietes, ’Groomer,’ ’Pro-Pedophile’: Old Tropes Find New Life In Anti-LGBTQ Movement, NBC News (April 12, 2022, 12:54 P.M.) https://www.nbcnews.com/nbc-out/out-politics-and-policy/groomer-pedophile-old-tropes-find-new-life-anti-lgbtq-movement-rcna23931 [https://perma.cc/DS5Y-TGU7].
120 See Phil Mayer, Proud Boys Disturb ‘Drag Queen Story Hour’ At Library, Yell Slurs: Police, Kron4 (June 12, 2022, 7:48 P.M.), https://www.kron4.com/news/bay-area/proud-boys-disturb-drag-queen-story-hour-at-library-yell-slurs/ [https://perma.cc/TE3Y-KYQF]
121 Kimberlee Kruesi & Karena Phan, ‘Grooming’: The Ubiquitous Buzzword In LGBTQ School Debate, AP News (March 29, 2022), https://apnews.com/article/education-gender-identity-adf10ff5f169fae9c9af4d08a7b0c2bc [https://perma.cc/QBP7-CMJ7].
122 See, e.g., Ken Walker, Homosexuals More Likely To Molest Kids, Study Reports, PabtistsPress: News Articles (May 30, 2001), https://www.baptistpress.com/resource-library/news/homosexuals-more-likely-to-molest-kids-study-reports/ [https://perma.cc/9UEW-C5DE].
123 See Matt Lavietes & Elliott Ramos, Nearly 240 Anti-LGBTQ Bills Filed In 2022 So Far, Most Of Them Targeting Trans People, NBC News, (Mar. 20, 2022), https://www.nbcnews.com/nbc-out/out-politics-and-policy/nearly-240-anti-lgbtq-bills-filed-2022-far-targeting-trans-people-rcna20418 [https://perma.cc/ZCR9-KFU8].
124 See, e.g., S.B. 615, 58 Leg., 2nd Sess. (Okla. 2021).
125 See, e.g., H.B. 2734, 101 Gen. Assemb., 2nd Sess. (Mo. 2022).
126 Kelcie Moseley-Morris, Bill prohibiting public drag performances to be introduced in upcoming Idaho legislative session, Idaho Capital Sun (Oct. 18, 2022), https://idahocapitalsun.com/2022/10/18/bill-prohibiting-public-drag-performances-to-be-introduced-in-upcoming-idaho-legislative-session/ [https://perma.cc/9NWW-QQX9].
127 Allison Turner, #FlashbackFriday -- Today in 1973, the APA Removed Homosexuality From List of Mental Illnesses, Human Rights Campaign (Dec. 15, 2017) https://www.hrc.org/news/flashbackfriday-today-in-1973-the-apa-removed-homosexuality-from-list-of-me [https://perma.cc/3W3L-QJGV].
128 LGBTQ Americans Aren’t Fully Protected From Discrimination in 29 States. Freedom For All Americans, https://freedomforallamericans.org/states/ [https://perma.cc/67L7-P5JC] (last visited Mar. 6, 2023).
129 See, e.g., John Q. La Fond, Washington’s Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control in Symposium: Predators and Politics: A Symposium on Washington’s Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev. 655 (1992).
131 Chris Koyanagi, Learning from History: Deinstitutionalization of People with Mental Illness as a Precursor to Long-Term Care 1-2, 11 (Kaiser Family Foundation, 2007).
133 See infra note 100.
134 See Kanu, supra note 100.
135 Respect for Marriage Act, Pub. L. No. 117-128, 136 Stat. 2305 (2022).
136 Id. at § 3
137 Id. at § 4.
138 See Alexandra Hutzler, House Passes Bills To Codify Roe, Protect Interstate Travel For Abortion, ABC News (July 15, 2022, 6:47P.M.), https://abcnews.go.com/Politics/house-vote-codifying-abortion-rights-travel-protections/story?id=86884239 [https://perma.cc/3NAW-EFCF].
139 See id.
140 See Center for Reproductive Rights & Brennan Center for Justice, State Court Abortion Litigation Tracker, Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/state-court-abortion-litigation-tracker [https://perma.cc/4EAQ-XH8J] (Feb. 15, 2023).
141 See Dylan Lysan et al., Voters In Kansas Decide To Keep Abortion Legal In The State, Rejecting An Amendment, NPR (Aug. 3, 2022, 2:18A.M.), https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment [https://perma.cc/VTQ7-CJLP].
142 Id.
143 See Bruce Schreiner & Beth Campbell, Kentucky Voters Reject Constitutional Amendment On Abortion, PBS (Nov. 9, 2022), https://www.pbs.org/newshour/politics/kentucky-voters-reject-constitutional-amendment-on-abortion [https://perma.cc/WPF7-A7LN].
144 Eric Bradner, Here’s What Happened When Senate Republicans Refused To Vote On Merrick Garland’s Supreme Court Nomination, CNN (Sept. 19, 2020, 8:16 PM) https://www.cnn.com/2020/09/18/politics/merrick-garland-senate-republicans-timeline/index.html [https://perma.cc/537Y-K2XW].
145 See Hulse, supra note 144.
146 Id.
147 Id.
148 See infra note 28 and accompanying text.
149 See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2348 (2022) (Breyer J., Sotomayor J. & Kagan J., dissenting) (“Power, not reason, is the new currency of this Court’s decisionmaking.” (quoting Payne v. Tennessee, 501 U.S. 808, 844 (Marshall, J., dissenting)). For an analysis of Justice Thomas’ originalism arguing that it is not only inconsistent, but “unbearable and unsustainable” even for its most ardent adherents, see Samuel A. Marcosson, Original Sin: Clarence Thomas and the Failure of The Constitutional Conservatives (New York University Press 2002).