Roe v. Wade, Dobbs v. Jackson, and What’s Next for Non-Heteronormative Families

There’s a lot of online talk about the Supreme Court overturning Roe v. Wade. As a Colorado law firm focusing on family law and estates, the decision may especially affect our clients. Here’s why:

A Brief Background

As a brief refresher, recall that our government is set up at a federal level and a state level. Federally, we have three branches, including the judicial branch. The Supreme Court’s job is not to create laws, per se (that’s for the legislative branch), but, rather, to interpret laws that are already in place, to construe the US Constitution, and to apply the laws to specific situations.

Have you ever signed a contract and then, later on, something came up in the business relationship and you had to go back and figure out how the contract applied to your specific situation? The wording isn’t always perfectly clear. That’s why we use courts to interpret, construe, and apply such wording to specific scenarios.

In the case of the US Supreme Court, one of the main things they are asked (and allowed) to do is interpret citizens’ rights under the US Constitution. Sometimes, they broaden their interpretation to try to get more at the heart of the document. Other times, they interpret it more narrowly and focus on the letter of the law. Either option—and everything in between those two ends of the spectrum—creates a precedent for future decisions, because each decision can be relied on in similar situations.

At the risk of using a gross oversimplification, it can be said that Roe v. Wade focused on the spirit of the law, while Dobbs v. Jackson (the decision that just overturned Roe) focused on the letter of the law.

Will This Affect My Family?

Maybe. The focus of this article is not on the reproductive rights or rights to life of either mother or fetus (all of which are greatly affected by the decision), but the decision itself could affect other areas of family law and estate planning.

When the Supreme Court makes a decision, it creates case law. Case law is used to help guide and make other decisions that might be similar down the road. The Dobbs Court specifically said they weren’t overturning any other decisions. However, their focus on the letter of the law here could mean that they will now focus on the letter of the law in future decisions as well. This could affect previous case law that was made more on the spirit of the law, including Obergefell v. Hodges, the case where the Supreme Court determined that same-sex marriage is a fundamental right. We have already seen a related abrogation with Fulton v. Philadelphia.

I’m Non-Heternormative. What Can I Do?

Each family will need to decide for themselves what makes sense for them at this time, especially since no one can know the future. That said, here are some options we suggest our non-heternormative clients consider:

·       Powers of Attorney, Will, HIPAA Release: These estate-planning documents may prove crucial if a marriage is invalidated but you want your partner to be able to help make medical and financial decisions for you, gain access to your medical facility if you are ill, help make decisions for your estate if you pass away, and inherit from you. Creating a Will is also important if you want to name your partner as the guardian of your biological children should you pass away or become incapacitated.

·       Beneficiary Agreements: These estate-planning tools have been used for many years in Colorado to provide inheritance rights to non-married partners. 

·       Second-Parent and Stepparent Adoptions: Colorado has a process for a non-married person to adopt a child as well as for a stepparent—which can include any non-biological parent, even if there was a legal marriage to the biological parent at the time of conception—to adopt a child. 

·       Cohabitation Agreements: Cohabitation agreements are used for non-married partners as a way of solidifying each partner’s rights and responsibilities to a shared living situation and property. This can include outlining each person’s responsibilities to pay for things such as the mortgage or utilities, clarifying who owns which assets or how they are jointly owned, and agreeing on terms for using jointly-owned assets and each person’s income. 

If you or your family are afraid of what may come, first, let us just say we are sorry for that fear and we hope the best for you.

If you would like help with any of the above options or other related legal issues, please feel free to reach out to our firm: admin@gantlawoffice.com or click on Contact Us on this page.