By Pooja D. Pujara
Procopio, Cory, Hargreaves & Savitch, LLP
As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doings things, and we’ll all be better off for it.
— Justice Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg, by consistently and fiercely challenging long held premises about fact and the law, showed society what she could do and we are all better off for it. In issues of fact, she challenged the legal community and educated us on how gender disparity, even under the guise of protecting women, led to gender discrimination. In issues of law, she challenged whether laws designed to protect women, a claimed government interest, actually diminished that interest rather than safeguard women.
CHALLENGING FACT
Justice Ginsburg, prior to her time on the Supreme Court worked as an advocate with the American Civil Liberties Union (“ACLU”), and was a dedicated educator of the principle that gender disparity leads to gender discrimination. This ideal is perhaps best demonstrated in her oral arguments in Weinberger v. Wisenfeld, “A gender line . . . helps to keep women not on a pedestal, but in a cage.”[1]
She later stated in her early days on the Court that she would need to educate her male colleagues regarding gender-based discrimination[2]: “I knew that I was speaking to men who didn’t think there was such a thing as gender-based discrimination, and my job was to tell them it really exists.” [3] “Most people thought that gender-based differentials in the law operated benignly in women’s favor. They didn’t see gender-based laws as adverse discrimination.”[4]
She cites the law prior to 1979, where many states excluded women from the requirements of jury duty, and “[t]hat was considered a favor for women. Was it really?” In those three simple words, she questioned why the justice system thought women were expendable enough to be excused from participating in the administration of justice. [5]
She challenged these basic premises of gender disparity over and over from the other side of the bench. In her dissent of Gonzales v. Carhart[6], she reaffirms the language in Planned Parenthood of Southeastern Pennsylvania v. Casey, saying “[t]hose views, this Court made clear in Casey, ‘are no longer consistent with our understanding of the family, the individual, or the Constitution.’”[7]
CHALLENGING LAW
In her time on the Supreme Court, Justice Ginsburg shrewdly challenged the baseless assumptions of laws that alleged that they furthered a government’s interests in women’s health through her dissents and concurrences of the majority opinions in Carhart and Hellerstedt, respectively. The laws challenged in Carhart and Hellerstedt were enacted in response to the Court’s reaffirmation of the Roe v. Wade[8] decision in Casey[9], Legislatures tested the “substantial obstacle” guideline through passing an onslaught of Targeted Regulations of Abortion Providers (“TRAP Laws”).[10]
Justice Ginsburg consistently reaffirmed the idea that instead of protecting women, we should let scientists and medical professionals educate them, and then trust women to have the talent and self-assurance to make their own decisions.
Dissent in Gonzales v. Carhart
In Carhart[11], the Court upheld the Partial Birth Abortion Act (the “Act”), a Congressional act enacted to apparently further the government’s interest in “protecting the health of the woman and the life of a fetus that may become a child.”[12] Justice Ginsburg’s scathing dissent[13] makes it clear that the government did not meet its burden of proving that the Act actually furthered this interest, especially since the Act did not (1) include any exceptions to the restriction for women’s health, required under Casey[14], or address the government’s interest in protecting “fetal life” as the Act only banned the described method used to procure an abortion.[15] She claimed the Court’s decision was “alarming”[16], and even went as far as to say that the Court dishonored its precedent.[17]
In her dissent, “she called out [the] five men who constituted the majority – for assuming the role of protector in 2007, for denying women the choice of how to proceed to protect [them].”[18] In her view, the Justices who wrote the majority, continued to perpetuate the tired and unimagined archetype of the damsel in distress, when in fact women, have the “talent, capacity, and right ‘to participate equally in the economic and social life of the Nation.’”[19]
She emphasized that the determination of what would be best for the preservation of the life and health of the pregnant woman, even if (and perhaps especially if) medical opinions differ, should be decided between a woman and her doctor. [20] In Carhart, instead of requiring doctors to inform women “accurately and adequately” of the risks of the procedures banned in the Act, and allowing them to make their own choice, Justice Ginsburg claims that “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.” She goes on to say that by assuming a woman has a frail emotional constitution and may come to regret her informed decision, the Court, “reflects ancient notions about women’s place in the family and under the constitution – ideas that have long since been discredited.” [21]
Concurrence in Whole Woman’s Health v. Hellerstedt
In Whole Woman’s Health v. Hellerstedt[22], the Supreme Court held that a TRAP law (referred to herein as “H.B. 2”) was unconstitutional because it did nothing to further a state’s interest and placed an undue burden on women’s ability to access abortion providers. The clearest application of this rule is in the majority opinion, when the Court asked the State of Texas during oral arguments whether it knew of a “single instance” in which H.B. 2 would have helped even one woman obtain better treatment, and the State of Texas confirmed that it could not procure any such evidence.[23]
Justice Ginsburg joined the majority, but also wrote a separate concurrence clearly emphasizing the importance of demanding that states prove the advancement of their interests, via their apparently protective legislation, through accurate and scientific evidence. She firmly stated that Trap Laws like H.B. 2 that “do little or nothing for health, but rather strew impediments to abortion. . . cannot survive judicial inspection.”[24]
When explaining that there exists concrete scientific evidence that abortion procedures are at least as safe as other medical procedures routinely performed in outpatient settings, Justice Ginsburg vehemently added, “ . . . it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions.” [25]
Conclusion
Justice Ginsburg said, “Dissents speak to a future age. . . the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope, that they are writing not for today, but for tomorrow.” [26]
Speaking today as a young woman in Justice Ginsburg’s “tomorrow,” it is important, now more than ever, to follow Justice Ginsburg’s example and challenge outdated assumptions, believe science, and trust women instead of caging them – we’ll all be better off for it.
[1] Weinberger v. Wisenfeld 420 U.S. 636 (1975), Oral Arguments on January 20, 1975, Ginsburg, Justice R.), quoting Frontiero v. Richardson 411 U.S. 677 (1973), where Justice Brennan stated, “Traditional such discrimination was rationalized by an attitude of ‘romantic paternalism’: which, in practical effect, put women, not on a pedestal, but in a cage. They reinforced not remedy, women’s inferior position in the labor force.”
[2] “The justices did not comprehend the differential treatment of men and women in jury selection and other legal contexts as in any sense burdensome to women . . . . From a justice’s own situation in life and attendant perspective, his immediate reaction to a gender discrimination challenge would likely be: But I treat my wife and daughters so well, with such indulgence. To turn in a new direction, the court first had to gain an understanding that legislation apparently designed to benefit or protect women could have the opposite effect.” Linda Greenhouse, Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87 Nytimes.com (2020), https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html (quoting Justice Ginsburg)
[3] Betsy West & Julie Cohen, Revisiting RBG: Directors Betsy West and Julie Cohen with EP Amy Entelis on “RBG” documentary — On Assignment Podcast On Assignment Podcast (2020), http://onassignmentpodcast.com/on-assignment-episodes/women-of-rbg-revisited
[4] Interview with Razia Iqbal, a special correspondent for BBC News, at the Berggruen Prize ceremony at the New York City Public Library on December 16, 2019. https://www.noemamag.com/ruth-bader-ginsburg-from-pedestal-cage-to-unconscious-bias/
[5] Interview with Razia Iqbal, a special correspondent for BBC News, at the Berggruen Prize ceremony at the New York City Public Library on December 16, 2019. https://www.noemamag.com/ruth-bader-ginsburg-from-pedestal-cage-to-unconscious-bias/ (referencing Duren v. Missouri 439 U.S. 357 (1979))
[6] Gonzales v. Carhart, 550 U.S. 124, 171–72 (2007) (Ginsberg, J. dissent)
[7] Gonzales v. Carhart, 550 U.S. 124, 171–72 (2007) (Ginsberg, J. dissent, quoting Casey, 505 U.S., 856, 879.)
[8] Roe v. Wade, 410 U.S. 113 (1973)
[9] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
[10] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2298 (2016)
[11] Gonzales v. Carhart, 550 U.S. 172 (2007)
[12] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.833, 846 (1992)
[13] Gonzales v. Carhart, 550 U.S. 124, 171–72 (2007) (Ginsberg, J. dissent)
[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.872, 846 (1992)
[15] “‘We must determine whether the Act furthers the legitimate interest of the Government in protecting the life of a fetus that may become a child.’ Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life.” Gonzales v. Carhart, 550 U.S. 124, 181-182 (2007) (Ginsberg, J., dissent)
[16] Gonzales v. Carhart, 550 U.S. 124, 170 (2007) (Ginsberg, J., dissent)
[17] “By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U.S., at 850, 112 S.Ct. 2791; (Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.) Lawrence v. Texas, 539 U.S. 558, 571 (2003); (Though [f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles, the power of the State may not be used to enforce these views on the whole society through operation of the criminal law. (citing Casey, 505 U.S., at 850.)” (Internal quotations omitted) Gonzales v. Carhart, 550 U.S. 124, 182–83 (2007) (Ginsburg, J., dissent)
[18] For Justice Ginsburg, Abortion Was About Equality, ACLU, September 23, 2020. https://www.aclu.org/news/reproductive-freedom/for-justice-ginsburg-abortion-was-about-equality/ (referencing Gonzales v. Carhart, 550 U.S. 124, 187 (2007) (Dissent Ginsberg, J.)
[19] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.833, 846 (1992)
[20] “The word ‘necessary’ in Casey’s phrase ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the [pregnant woman],’ cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and ap-propriate treatment. And Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion. . . .” Gonzales v. Carhart, 550 U.S. 124, 187 (2007) (Dissent Ginsberg, J.) (citation omitted).
[21] Gonzales v. Carhart, 550 U.S. 124, 185 (2007) (Dissent Ginsberg, J.)
[22] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016)
[23] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311–12 (2016)
[24] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Ginsburg, J. concurrence, citing Planned Parenthood of Wis., 806 F.3d, at 921)
[25] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Ginsburg, J. concurrence, citing Planned Parenthood of Wis., 806 F.3d, at 910)
[26] Interview with NPR’s Nina Totemberg on May 2, 2002 on Morning Edition; https://www.npr.org/templates/story/story.php?storyId=1142685