legal wiz

Roberta Kaplan on the demise of Roe v. Wade and what’s next for equality

Roberta “Robbie” Kaplan at the Fortune Most Powerful Women Summit 2018 at Ritz Carlton Hotel, Laguna Niguel, California. Photo by Phillip Faraone/Getty Images for Fortune.

Roberta “Robbie” Kaplan has made a career out of advocating for civil rights and equality, including her historic work representing lesbian Edie Windsor in United States v. Windsor in which she convinced the Supreme Court to strike down the Defense of Marriage Act (DOMA) in 2013, clearing the path for marriage equality in the United States. 

Kaplan’s clients are a who’s who of queer causes, from the victims of 2017’s racist attacks in Charlottesville, Virginia, for whom she won a staggering $26 million judgment, to Zander Moricz, a Florida high schooler currently challenging the state’s now-infamous “Don’t Say Gay” law.

Despite these and other gains, the legal and political situation has become increasingly dire. According to the Human Rights Campaign, 2021 was the worst year for anti-LGBTQ state legislation since 2015, the year that marriage equality became legal nationwide. And a Supreme Court draft opinion leaked in May revealed that the future of Roe v. Wade — the 1973 ruling that established the right to legal abortions — was poised to be overturned.

The final ruling, which eliminates the constitutional right to abortion after nearly 50 years, was finally issued today.

Queerty spoke to Kaplan a few days before the Dobbs decision was handed down to better understand why abortion access is a queer issue and what Roe’s demise could mean for other hard-won Supreme Court victories like marriage equality. Here’s what she had to say…

QUEERTY: Why does the constitutional right to an abortion matter if many of us will never get pregnant or need an abortion?

KAPLAN: It’s very simple. The legal principles that the Supreme Court relied on when they decided Obergefell arose out of a jurisprudential concept known as substantive due process. What that essentially means is that although certain rights aren’t spelled out in the Constitution, there are certain things about how people structure their private lives, their sexual relationships, and their family lives that are so fundamental to the integrity and dignity of a person that they can’t be interfered with by the government. 

Substantive due process arose originally in the concept of Americans having the right to use contraception in Griswold v. Connecticut. It then went to the right of white people to marry Black people [Loving v. Virginia]. It traveled along the same path for Roe v. Wade. So what is so troubling and potentially scary about the draft opinion that was leaked several weeks ago is that the very same criticism that Justice Samuel Alito articulated for why Roe v. Wade should be overturned is almost exactly the reasoning that the Court used in Obergefell.

Do you think it’s likely that marriage equality could be overturned too?

Justice Alito does say in the leaked draft that abortion is different because it involves the existence of a fetus. But if you read Justice Alito’s dissents in Windsor and Obergefell, it’s very hard to see much space between what he says there and what he says in the draft opinion. I think the ultimate question really is, “Well, which Justice Alito should you be listening to?” And the answer to that is that no one knows. I’m not aware of anyone who has the power of a crystal ball or the power to read into other people’s minds. 

One possible explanation is maybe that Justice Alito doesn’t believe he has the votes on the Court to overturn a decision like Obergefell. But no one should take great comfort in any of that because it really all depends on the thoughts of six people who happen to sit on the Supreme Court. 

What does abortion access in the United States look like going forward?

Let me put it this way … We will see a legal, social, and cultural landscape in the U.S. like we have not seen since the Civil War. What I mean by that is that there will be basically two Americas. There will be states like New York, where women will have every right to reproductive choice, and where women from out of state will likely travel for reproductive choice. And we will have another set of states — they will be roughly even [in number], which is truly a scary thing — where there will be no such options, and where the act of seeking an abortion, or helping somebody get an abortion, will be not only illegal but criminal. The last time the United States had a situation like that, and I’m not exaggerating, was the Fugitive Slave Act.


For the nation as a whole, it’s extremely troubling.

It makes me think of how conservative state legislators are attempting to ban transgender kids’ access to life-saving gender-affirming health care. Do you see any parallels between renewed animosity toward Roe v. Wade and attempts by lawmakers to legislate trans people’s bodily autonomy?

The issues that come up in trans cases are litigated under the equal protection clause rather than substantive due process, which was Obergefell. These laws only affect an incredibly small minority of people, particularly in these states where they’re being passed. The reason for these laws is this intention to use what may be new or controversial issues in a way that divides people, arouses people’s passions and hatred and fear, and thereby rallies people to certain politicians’ side. It’s all coming from the same source. 

The fact that people can do this on the backs of our children — which is really what’s happening — is astonishing to me. I’m working on the Florida “don’t say gay” case, and you see this with the trans health care cases, too. The cruelty of it is just astonishing.

I wanted to ask about your work on that. In a previous interview, you said that Florida’s “Don’t Say Gay” law “harkens back, sadly, to some of the worst laws that have been passed in our country.” What did you mean by that?

What the law is intended to do is to basically take a certain segment of our society and effectively demean them and make them second class. The access a gay kid or kid of gay parents will have to a free, dignified, safe public education in the state of Florida is going to be very, very different than the access that a straight, cisgender kid or a kid with straight parents will have. 

Despite the upcoming seventh anniversary of Obergefell v. Hodges, which set the precedent for national marriage equality, it seems we’re regressing. Not only with Roe v. Wade but also with a surge in hate-motivated violence and political attacks. How did we get here?

Unfortunately, in the culture in which we live, which is full of conspiracy theories and soundbites and so-called fake news, a number of politicians in our country have decided that the way to draw attention to themselves and their platform is to do so effectively on the backs of LGBTQ citizens. But I would say that panic is intensified by today’s media, in which everything seems to get intensified to the most radical and extreme degree almost immediately. I think at this point, it’s fair to say that the vast majority of Americans know and may even love someone who is openly LGBTQ, but we have become a political grenade that one side in the political debate can use to grab headlines and social media hits. It’s a way of generating anger and fear and passion.

Jim Obergefell
Jim Obergefell at the 45th Annual San Francisco Pride Celebration and Parade, 2015. Photo by Marcus Yam / Los Angeles Times via Getty Images.

What do you think it is about LGBTQ people that enrages right-wing voters and politicians so much?

Let me for a second, take off my lesbian hat and put on my kippah, which I don’t wear but am obviously familiar with as a Jew. That kind of fear of the other, as Jewish people well know, is ancient. I like to think that humanity has learned that everyone was born with equal dignity. But unfortunately, the fear of people who are different — who are in minority groups, who live their lives differently in certain respects — has very deep origins. It’s the same kind of passions that are being dug up today against Jewish people, against Black people in the United States, against Muslim people, against immigrants, against women. The depressing thing about the word “intersectionality” is that the one respect in which it’s absolutely, 100% true is the way people hate us. White supremacists hate us intersectionally.

You famously represented Edie Windsor in the landmark lawsuit that successfully challenged DOMA. Can you explain why that decision was so important in the timeline of the fight for marriage equality?

Your marital status has a lot of implications legally in terms of all kinds of things — health care, federal benefits, state benefits. Sadly, it probably matters the most when one of the persons in the couple dies because whether or not their estate is taxable to their spouse is solely dependent on whether they’re married and whether that marriage is valid. 

In Edie Windsor’s situation, they were considered to be married under New York law; Edie and Thea [Spyer, Windsor’s wife] married in Toronto, Canada, previously. Thea died in late 2009. Edie, as is true for most married couples, inherits Thea’s estate. But for purposes of federal law, that marriage was basically nonexistent. It was as if Edie was inheriting it from a stranger. And that meant she had to pay estate tax to the tune of $353,000 federally and then another $200,000-plus in New York. 

You had this situation nationwide at this point, where there were couples that were married for some purposes but not married for others. They were what Justice Ruth Bader-Ginsburg so eloquently called  “skim milk marriages” during the oral arguments in Windsor. What Windsor said is that treating married couples that way — as married for some under state law and unmarried for federal law — violated the equal protection clause of the Constitution. That’s what Justice Anthony Kennedy wrote in his decision on June 26, 2013. 

So the section of DOMA that said these marriages aren’t valid for federal purposes became unconstitutional because of the logic of Justice Kennedy’s decision. And in the next two years, following the logic of Windsor, state after state after state said that meant gay and lesbian couples had a right to get married as well. 

Edie Windsor and Roberta Kaplan
Edie Windsor, left, and Roberta Kaplan attend Logo TV‘s “Trailblazers” in New York City, 2014. Photo by Andrew H. Walker/Getty Images.

Do you think people in same-sex relationships who want to get married should be actively concerned that their right to marry is in jeopardy?

I think if you’re in a same-sex relationship, and you want to get married and have someone to marry, you should get married [laughs]. Like, I’m not telling people to race to hire a wedding planner or anything, but if you feel pretty secure that you want to get married to a person, I would urge people to do so. The reason is, I don’t think the Supreme Court, even at its most vehement, would seriously consider invalidating marriages that have already happened. 

Hearing all of this information, it’s easy to feel scared or helpless. What is something actionable that readers can do to help protect LGBTQ civil rights?

I obviously understand fear and depression, but I would urge people to overcome that. One thing I can say that could help to buck people up is the fact that LGBTQ rights in our country evolved and developed at a faster pace than any other minority group in recent history. It was an enormous achievement over a relatively short period of time when you compare it to, say, the rights of African Americans under Jim Crow. Backlash is inevitable, but it doesn’t mean our rights are all going to be taken away. 

The number-one thing that LGBTQ Americans have to do is to vote and to make sure that every single person who knows and loves them votes for candidates who believe in our Constitution, who believe in equal protection, and who believe in the equal dignity of all Americans, regardless of who they love, the color of their skin, or who they marry.