Justice Ruth Bader Ginsburg, who died a year ago this week, had been well aware that the conservatives on the Supreme Court were poised to take a right turn in areas concerning reproductive health and voting rights. But the liberal icon would likely be stunned to see how far and how fast the court has actually moved.
Over the last year, the Supreme Court has not only allowed a Texas law that bars abortion after as early as six weeks into pregnancy take effect, but it announced it will hear a direct challenge to Roe v. Wade during the upcoming term in a case out of Mississippi. In addition, last July, the court scaled back voting protections in a dispute that followed the most litigious presidential election in history.
“Justice Ruth Bader Ginsburg knew that laws about voting rights and reproductive choice are not abstract legal ideals,” Jessica A. Levinson of Loyola Law School told CNN. “But she might have been astonished by the breadth and depth of the court’s decisions to eviscerate protections for access to the polls and a woman’s ability to obtain an abortion.”
The two issues represent a part of Ginsburg’s legacy built over her near 30-year tenure on the high court. She was a prolific supporter of access to abortion and contraceptive coverage, and she condemned efforts to weaken the Voting Rights Act. Indeed, in 2013 after the Court gutted a key provision of the historic law, Ginsburg issued an opinion that reverberated throughout a new generation of progressive activists who came to refer to her as the “Notorious RBG.” The majority’s move to scale back the law, Ginsburg famously wrote, was like “throwing away your umbrella in a rainstorm because you are not getting wet.”
The Amy Coney Barrett factor
Because Ginsburg died just weeks before Election Day, then-President Donald Trump was able to replace her with a conservative justice, Amy Coney Barrett — a move with critical implications.
After Barrett took the bench, the court considered the Mississippi case for months behind closed doors before finally announcing it would hear arguments next term and decide a direct challenge to Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
The justices, in agreeing to take up the case and consider the law that bars most abortions in the state after 15 weeks of pregnancy, will hear the most important abortion dispute in some 30 years.
Barrett also provided the critical vote early this month when the court allowed the Texas law that bars abortion before most women even know they are pregnant to go into effect pending appeal.
And last term, she was in the majority when the court broke along traditional ideological lines and upheld two controversial Arizona provisions that restricted how ballots could be cast.
Abortion
Supporters of abortion rights fear that Barrett’s votes will undermine Ginsburg’s legacy when it comes to abortion.
During her confirmation hearing in 1993, Ginsburg declared: “There is something central to a woman’s life, to her dignity.”
“It’s a decision that she must make for herself,” she continued, “and when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
On the bench, she repeatedly ruled in favor of reproductive rights.
In 2007 when the court upheld a federal law that barred so-called “partial birth abortion,” Ginsburg dissented. She took issue with the majority’s contention that “women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.'”
“This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited,” Ginsburg said.
In 2014, the majority ruled in favor of a closely held corporation that brought a religious objection to the Affordable Care Act’s requirement that health care plans include contraceptive coverage. Ginsburg dissented, calling the majority’s decision one of “startling breadth.”
In a concurring opinion in a 2016 case in which the court blocked abortion restrictions in Texas, Ginsburg wrote to emphasize what would happen to poor women if the restriction had been allowed to go into effect. “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners,” Ginsburg said, adding, “at great risk to their health and safety.”
In 2020, she dominated during oral arguments in a case concerning a Louisiana law that required doctors to have admitting privileges in a nearby hospital.
“Most of the people who get abortions never have any need to go to the hospital, isn’t that so?” she queried, continuing to dismantle each argument in favor of the law, point by point.
In another case in 2020, when the court was hearing oral arguments by telephone because of Covid 19, Ginsburg called in from her hospital bed as she was fighting off infection. The case concerned the Trump administration’s attempt to weaken the Affordable Care Act’s so-called contraceptive mandate.
“You have just tossed entirely to the wind what Congress thought was essential — that is that women be provided these services with no hassles, no cost to them,” she told a government lawyer.
“Justice Ginsburg said time and again that we will never have true gender equality in the absence of women having reproductive freedom,” said Amanda Tyler, a former Ginsburg law clerk who was writing a book with the justice at the time of her death.
“The two are inextricably intertwined,” Tyler said.
Flash forward to September 1, just shy of the one-year anniversary of Ginsburg’s death. In a late night order, the court formally allowed the controversial Texas law to go in effect. Overnight, Roe became a dead letter in the second largest state. Critics of the law said it was carefully crafted to make it difficult to challenge in court. That’s because it specifically precluded Texas officials from enforcing it. Instead, any individual, from anywhere in the country, could bring a lawsuit against a person who helped someone access the procedure in violation of the law.
The majority — including Barrett — said that while the court wasn’t weighing in on the constitutionality of the law, it would allow it to go into effect pending appeal. “It is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” the majority wrote.
Chief Justice John Roberts, in dissent, wrote that the law was “unprecedented.” He said that he would have blocked the law to give courts the chance to consider procedural questions.
“The desired consequence,” Roberts wrote, “appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” Writing for her liberal colleagues, Justice Sonia Sotomayor went much further, lashing out at the majority for its “stunning” order.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she said.
Ginsburg would not only have disputed the case on the merits, but those who know her said she would have called out the procedural tactics.
“Ginsburg was a consistent voice for procedural integrity at the Court,” Tyler said. “She would have been up in arms over the court allowing such a restrictive law to go into effect in direct contravention of longstanding precedent and while the court has a pending merits case before it implicating the same core issues.”
“We are now seeing just how profoundly unfortunate her absence from the Court is, given that her vote could have stayed the Texas law from going into effect,” Tyler concluded.
Voting Rights
In the voting rights area, the court has also moved right since Ginsburg’s death.
In 2013, Roberts wrote a 5-4 majority opinion in Shelby County v. Holder, effectively gutting Section 5 of the Voting Rights Act, a provision that required states with a history of discrimination to obtain the permission of the federal government or the courts before enacting new laws related to voting.
Ginsburg dissented, invoking the umbrella metaphor and calling the Voting Rights Act “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.”
Last term, with Ginsburg no longer on the bench, the court heard a case concerning two provisions of Arizona voting law that critics said violated a separate provision of the Voting Rights Act.
Justice Samuel Alito wrote the 6-3 majority opinion upholding the laws and stressing that the state had an “entirely legitimate interest” in the prevention of fraud.
Justice Elena Kagan responded fiercely in dissent, noting that the justices had “no right” to remake the law.
“What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to American’s greatness, and protects against its basest impulses,” Kagan wrote.
In her dissent, Kagan cited Ginsburg eight times.
