Ruth Bader Ginsburg would be stunned by Supreme Court on abortion and the right to vote

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“Justice Ruth Bader Ginsburg knew that voting rights and reproductive choice laws are not abstract legal ideals,” Jessica A. Levinson of Loyola Law School told CNN. “But she may have been amazed at the breadth and depth of the court’s rulings to gut the protections for access to polling stations and a woman’s ability to obtain an abortion.”

Both issues are part of Ginsburg’s legacy built during his nearly 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 law. Indeed, in 2013, after the Court gutted a key provision of the landmark law, Ginsburg issued an opinion that resonated with a whole new generation of progressive activists who have come to call him the “Notorious RBG.” . The majority decision to lower the law, Ginsburg wrote, was like “throwing your umbrella in a rainstorm because you don’t get wet.”
Because Ginsburg died just weeks before election day, then-President Donald Trump was able to replace her with Conservative judge 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 that it would hear arguments the next term and decide on a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court ruling legalizing abortion nationwide before viability, which can occur around 24 weeks pregnant.
Judges, by agreeing to take up the case and review the law that bans most abortions in the state after 15 weeks of pregnancy, will hear the largest abortion dispute in some 30 years.

Barrett also provided the critical vote earlier this month when the court cleared Texas law that prohibits abortion before most women even know they are pregnant to go into effect pending appeal.

And the last term she was in a majority when the court broke with traditional ideological lines and upheld two controversial Arizona provisions that restricted how ballots could be cast.

Abortion

Abortion rights advocates fear Barrett’s votes will undermine Ginsburg’s abortion legacy.

At her confirmation hearing in 1993, Ginsburg said, “There is something central to a woman’s life, to her dignity.

“It’s a decision she has to make for herself,” she continued, “and when the government controls that decision for her, she is treated as less than a fully adult human responsible for her own. choice.”

On the bench, she has spoken out several times in favor of reproductive rights.

In 2007, when the court upheld a federal law prohibiting what is known as “partial birth abortion,” Ginsburg dissident. She challenged the majority’s assertion that “women who abort come to regret their choices and, as a result, suffer from”[s]never depression and loss of self-esteem. ‘”

“This way of thinking reflects old notions about women’s place in the family and under the Constitution – ideas that have long been discredited,” Ginsburg said.

In 2014, the majority voted in favor of a private company that raised a religious objection to the Affordable Care Act’s requirement that health care plans include contraceptive coverage. Ginsburg dissented, calling the majority’s decision “surprisingly broad.”

In a concurring opinion in a 2016 case in which the court blocked abortion restrictions in Texas, Ginsburg wrote to highlight what would happen to poor women if the restriction were allowed to go into effect. “When a state severely restricts access to safe and legal procedures, women in desperate circumstances may resort to rogue unlicensed practitioners,” Ginsburg said, adding “at the risk of their health and safety.”

In 2020, she dominated oral argument in a case over a Louisiana law that required doctors to have admitting privileges to a nearby hospital.

“Most people who have an abortion never need to go to the hospital, do they? she asked, continuing to dismantle every argument for the law, point by point.

In another case in 2020, when the court heard oral arguments over the phone over Covid 19, Ginsburg called from her hospital bed as she battled the infection. The case concerned the Trump administration’s attempt to weaken the so-called contraceptive mandate of the Affordable Care Act.

“You have just rejected entirely what Congress considered essential – that women receive these services without hassle, at no cost to them,” she told a government lawyer.

“Justice Ginsburg has said time and again that we will never have true gender equality without women with reproductive freedom,” said Amanda Tyler, a former Ginsburg paralegal who wrote a book with the justice at the time of his death.

“The two are inextricably linked,” Tyler said.

Fast forward to September 1, just before the first anniversary of Ginsburg’s death. In a late-night order, the court formally allowed the controversial Texas law to come into force. 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. This is because it specifically prevented the Texan authorities from enforcing it. Instead, any individual, from anywhere in the country, could take legal action against someone who helped someone access the process in violation of the law.

The majority – including Barrett – said that while the court would not weigh on the constitutionality of the law, it would allow it to come into force pending appeal. “It is not clear whether the defendants named in this lawsuit can or will seek to enforce Texas law against the plaintiffs in a manner that would allow our intervention,” the majority wrote.

Chief Justice John Roberts, dissenting, wrote that the law was “unprecedented.” He said he would have blocked the law to give the courts a chance to consider procedural matters.

“The desired consequence,” Roberts wrote, “appears to be to isolate the state from responsibility for implementing and enforcing the regulatory regime.” Writing for her fellow Liberals, Judge Sonia Sotomayor went much further, attacking the majority for her “astonishing” order.

“Presented with a request to ban a clearly unconstitutional law designed to prohibit women from exercising their constitutional rights and evading judicial scrutiny, a majority of judges choose to stick their heads in the sand “she said.

Ginsburg would not only have disputed the case on the merits, but those who know her have said she would have denounced the procedural tactics.

“Ginsburg was a consistent voice for procedural integrity in court,” Tyler said. “She reportedly rose up against the court allowing such a restrictive law to come into force in direct violation of a long-standing precedent and while the court has a merits case pending before it involving the same fundamental issues. ”

“We now see how deeply regrettable his absence from court is, given that his vote could have prevented Texas law from coming into force,” Tyler concluded.

Right to vote

In the area of ​​voting rights, the court has also evolved since Ginsburg’s death.

In 2013, Roberts wrote a majority opinion of 5-4 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 federal or court clearance before enacting new voting laws.
Shelby County decision could make it easier for states to cope with extreme racial gerrymandering

Ginsburg dissented, citing the umbrella metaphor and calling the Voting Rights Act “one of the most consistent, effective, and amply justified exercises of federal legislative power in our nation’s history.”

With Ginsburg off the bench last term, the court heard a case involving two provisions of Arizona’s electoral law that critics said violated a separate provision of the Voting Rights Act.

Judge Samuel Alito wrote the 6-3 majority opinion upholding the laws and noting that the state had a “very legitimate interest” in fraud prevention.

Judge Elena Kagan responded fiercely with dissent, noting that judges had “no right” to remake the law.

“What is tragic here is that the Court has (once again) rewritten – in order to weaken – a law that stands as a monument to American greatness and protects against its lowest impulses,” wrote Kagan.

In his dissent, Kagan cited Ginsburg eight times.

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