Supreme Court Justice, Ruth Bader Ginsburg (known affectionately of late as “RBG”), died in the evening on the beginning of Rosh Hashanah, the Jewish New Year. In the Jewish tradition, family members “sit shiva” for seven days and seven nights by sitting on low stools and receiving visitors to comfort them. There is a collective sorrow now which I feel most deeply among my female friends in all professions and occupations, but most achingly in the legal field. Because if you had the temerity to branch into male-dominated professions – whether that was in the 1980s or 1990s – or even later, then you know something about the challenges of those times regarding gender equality. RBG, this petite sprite of a woman, with her unyielding hot pen gave us the energy we needed and intellect we craved to be fierce in the world and to claim our space.
In her memory, I want to give you a sense of the work she did through the opinions she wrote.
Gonzalez vs. Carhart, 127 S.Ct. 1610 (2007)
Four physicians brought an action against the Attorney General challenging the constitutionality of the Partial Birth Abortion Ban Act of 2003. The United States District Court of Nebraska held the Act was unconstitutional and enjoined enforcement of the Act. The Court of Appeals for the 8th Circuit affirmed. In a related suit, abortion advocacy groups challenged the Act on its face. The Northern District Court of California invalidated the statute and granted an injunction. The Court of Appeals for the 9th Circuit affirmed. Petitions for writ of certiorari to the Supreme Court were granted.
In 2003, Congress passed the Partial Birth Abortion Ban Act to proscribe a particular method of ending fetal life in the late stages of pregnancy. In understanding this decision, you have to understand some earlier Supreme Court abortion decisions. In 1992 in Planned Parenthood vs. Casey, the Supreme Court reaffirmed the three-part essential holding of Roe vs. Wade. One, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability if the law contains exceptions for protecting the health of the woman. Third, the State has the legitimate interest from the pregnancy’s outset in protecting the health of the woman and the life of the fetus.
The stated purpose of the Act was to protect an innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. Justice Kennedy, Roberts, Scalia, Thomas and Alito reversed the lower courts’ decisions and determined that the Act did not create an undue burden; was not designed to create a substantial obstacle in the path of a woman seeking an abortion; and the regulation was rational and in pursuit of legitimate ends.
RBG wrote the dissent with Stevens, Souter and Breyer joining. In her dissent, RBG noted that the Casey court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect the health of the woman. Other similar “partial birth abortion” statutes were struck down by this court for lacking the requisite protection for the preservation of a woman’s health. She writes:
Today’s decision is alarming. It refused to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” [citations] “There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” [citations]. Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” [citations]. Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” [citations]. Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature [citations] [emphasis supplied].
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” [citations]. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D & E procedure [citations]. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U.S., at 873, 112 S.Ct. 2791 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
… In sum, the notion that the Partial–Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. [citations]. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.”
Later, the New England Journal of Medicine would call the Court’s decision “shameful and incomprehensible”, ignorant of medical consensus and chilling for the medical profession. The Washington Post would describe of Ginsburg’s dissent in Gonzalez: [She] devoted to her dissent in Gonzalez to eviscerating [Kennedy’s] decision. Law review articles after Gonzalez would note, as Ginsburg did, that Kennedy’s rhetoric was paternalistic and overly sentimental of its view of motherhood. Moreover, the opinion sought to define the female body as a geographical space that apparently requires regulation. Ginsburg pointed out this language and discredited stereotypes about women’s roles in society. Kennedy’s decision outlined in graphic detail the abortion procedure, but the woman barely makes an appearance. The decision describes a drama played out between doctor and fetus. The Columbia Journal of Gender and Law wrote:
Indeed, the Court’s substitution of “body” for “vagina” is an odd synecdoche. Here, the uterus comes to stand for the woman as a whole and its border, the cervix, stands for the outer edge of her body. Moreover, the Court has seemingly designated everything beyond the cervix, including the birth canal itself, as public, not belonging to the woman but outside of her, and therefore as properly subject to regulation. This image resonates with the Court’s assertion of its own authority to “draw boundaries to prevent certain practices that extinguish life and are close to actions that are condemned”—even, apparently, when the boundaries are within the woman’s body. Thus, the vagina, like the woman herself, is either absent from the Court’s field of vision, or, more likely, the vagina is missing from the discourse on what takes place within the woman’s body because the vagina is not part of that body—it is a separate entity that is eminently public rather than profoundly private.
Notably, it would be Ginsburg’s meticulous sand-blasting dissent that discredited the opinion in Gonzalez and prevented further erosion of reproductive rights. Thanks in part to Ginsburg for her decades long work on gender equality as an attorney working with the ACLU Women’s Rights Projects, courts struck down laws that disadvantaged women simply because they were women. And having been the architect of change in these laws on behalf of women, RBG did not quietly allow for their further destruction. She also had the ability to see how paternalistic laws seeking to “protect” women rarely did. Much of the work she did here in this opinon was to “eviscerate” the logic of the majority opinion and hold back a growing trend of judicial opinion that seeks to patronize the decisions of and to obstruct the autonomy of women and their reproductive health.