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We lost her a year ago.
Justice Ruth Bader Ginsburg, icon, soft spoken ballbuster, and the Supreme Court’s most ardent protector of women’s rights for 27 years, was hastily replaced by Trump-appointee Amy Coney Barrett days before the 2020 election.
October 4th marks the 28th anniversary of Ginsburg’s appointment as the second woman justice confirmed (96-3) to the Supreme Court in 1993. Her dying wish was that her seat remain empty until a different president sat in the Oval Office. That wish dishonored, Supreme Court conservatives now outnumber liberals 5-3 with Chief Justice John Roberts’ vote unable to even the score.
RBG’s departure left a swath of landmark cases in the lurch. Viewing some of them brought during Coney Barrett’s first year, we get an idea of the latter’s positioning:
- Affordable healthcare (upheld)
- Environmental safety (ruled against Sierra Club’s request for government docs)
- LGBTQ discrimination (upheld PA foster agency’s right to discriminate)
- Covid (upheld Indiana University’s vaccine mandate)
- Advertising ethics (upheld dark donor anonymity)
- Abortion rights (silent on Texas ban, allowing passage)
Re: abortion rights. The jury is out on Amy Coney Barrett, who thus far has been presented no active litmus test. She is a conservative Catholic who believes life begins at conception but has emphasized: “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.” She has also said she does not consider Roe a super-precedent, aka irreversible, not that she necessarily thinks it should be overruled.
RBG anticipated Roe’s 2021 dilemma from afar. She favored the 1973 outcome but disagreed with the architecture because its narrow focus left the rule susceptible to eventual chiseling. She was outspoken in her argument that Roe narrowly centered on a pregnant woman’s constitutional right to privacy—this allowing her “to choose to have an abortion without excessive government restriction.”
But Roe also ruled the right to choose was not absolute. “Excessive restriction” was left for states to interpret. Roe v. Wade reshaped American politics, dividing the country into pro-choice and pro-life blocs, spurring grassroots movements on both sides.
Regulated liberty is an oxymoron. Ginsburg argued that abortion access should be federally legalized not to protect privacy—but as the absolute federal recognition of gender equality under the Constitution.
“Abortion prohibition by the State… controls women,” she told senators during her confirmation hearing. “It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
Energized by this court’s passivity, Texas governor Greg Abbott on September 1, 2021, enacted the country’s most restrictive abortion ban, outlawing an embryo’s medical termination after fetal heartbeat is detected, as early as six weeks. But Texas abortion law also dictates an embryo must be properly planted in the uterus before clinically aborting, a condition best determined by fetal heartbeat, as early as six weeks. Math for Dummies?
To circumvent future court opposition and other legal hurdles, the Texas ruling further deputized private citizens to inform on violators—not government law enforcement.
So much for privacy.
On December 1, this Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, a Mississippi abortion case asking conservative justices to overturn Roe v. Wade, which is now vulnerable after 50 years of established precedent for exactly the reasons Ruth Ginsburg predicted. According to CNN, the case is the “most important set of abortion-related oral arguments the court has heard since 1992.”
Dobbs comes just as states across the country, galvanized by a conservative SCOTUS majority and RBG’s replacement with polar opposite Justice Amy Coney Barrett, are passing more prohibitive abortion regulations with growing momentum. Pro-lifers are aiming to whittle constitutional rights established in Roe, 1973, again affirmed in 1992 when the court delivered Planned Parenthood vs. Casey.”
Katha Pollitt writes in The Nation, “If Roe v. Wade is overturned, the future will be worse than the past. When abortion was illegal [then], there was no organized, aggressive antiabortion movement with a wing of violent fanatics.”
Barrett insists she will be an impartial justice. Meanwhile, RBG is stirring in her grave.
