“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.”
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.
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.
“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 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.”
“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.
“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.
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.
“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.
In the voting rights area, the court has also moved right since Ginsburg’s death.
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.