September 21, 2020 – The death of Supreme Court Justice Ruth Bader Ginsburg marks the passing of a legal giant who devoted her life to advancing the liberty and equality of women, first as a litigator and later as an appellate and then Supreme Court Justice.
Her clear, unwavering conviction that women must be given equal treatment under the law changed the legal rights of half the nation.
Justice Ginsburg was a lifelong champion of gender equality. As an attorney in the 1970s, she won major victories before the Supreme Court outlawing sex discrimination. And early in her tenure on the Supreme Court, she authored the majority opinion in U.S. v. Virginia (1996), striking down the Virginia Military Institute’s men-only admissions policy, establishing protections against gender stereotyping that we continue to depend on to this day.
Justice Ginsburg understood that women need control over their fertility and fair treatment during pregnancy if we are to achieve gender equality. As an attorney, she represented a woman who was forcibly discharged from the Air Force because she was pregnant, and authored a groundbreaking brief that connected the constitutional rights to liberty and equality in a single right to “equal autonomy.”
Justice Ginsburg understood that access to abortion care implicated “a woman’s autonomy to determine her life’s course.” She made that clear at her 1993 Supreme Court nomination hearing. Unlike today, when judicial nominees evade questions about whether they agree with the holding of Roe v. Wade, Justice Ginsburg was unequivocal. She testified forthrightly that the Constitution protects a woman’s “right to decide whether or not to bear a child,” which she explained is “central to a woman’s life [and] to her dignity.”
During her twenty-seven years on the Court, Justice Ginsburg was an impassioned voice for reproductive rights. In 2016, she joined the landmark decision reaffirming the Constitution’s protection of the right to access abortion in Whole Woman’s Health v. Hellerstedt (2016), and wrote her own forceful concurring opinion condemning medically unjustified abortion regulations that “do little or nothing for health, but rather strew impediments to abortion.”
She reaffirmed that decision this year in June Medical Services v. Russo (2020), which struck down a law identical to the law at issue in Whole Woman’s Health, and joined a plurality opinion reiterating that these laws impose severe burdens on pregnant people for no legitimate medical reason.
When the Supreme Court ruled against reproductive rights, Justice Ginsburg authored unflinching dissents. In Gonzales v. Carhart (2007) refuted the majority’s assumptions about “women’s fragile emotional state” as “reflect[ing] ancient notions about women’s place in the family and under the Constitution – ideas that have long since been discredited.” She also warned against undermining the rule of law if the Court, upon a change in membership, ignores its own precedent, stating: “the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of the rule of law.” And her dissent in Burwell v. Hobby Lobby (2014) rejected the majority’s decision weakening the Affordable Care Act’s birth control coverage guarantee, emphasizing that access to contraception advances public health and women’s well-being.
Even in the last 13 years, Justice Ginsburg had to lay out again and again how pregnancy discrimination is sex discrimination. In a 2009 dissent, she wrotethat “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.”i
And in a 2012 dissent, she explained that “[D]iscrimination against women … is tightly interwoven with society’s beliefs about motherhood.” Her dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co. (2007) in support of a female employee’s pay discrimination lawsuit inspired Congress to enact the Lily Ledbetter Fair Pay Act – effectively reversing the Court majority’s decision, and making Ginsburg’s opinion law.
Justice Ginsburg also recognized that racial injustice and discrimination are hardly things of the past. When the Court’s majority gutted a key component of the Voting Rights Act in Shelby County v. Holder (2013), she authored a fiery dissent, arguing that weakening the law when it “is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Justice Ginsburg’s death creates a vacancy on the Supreme Court at an already fraught time for millions of people, who are counting on a fair and independent Court to serve as a check on an extreme agenda to turn back the clock on women’s ability to control their reproductive lives . Since 2011, abortion opponents in state legislatures have pushed through more than 450 harmful laws designed to make it virtually impossible for people to access abortion care in their communities. Dozens of legal challenges to abortion restrictions are currently pending in federal and state courts.
Justice Ginsburg’s friend and colleague Justice Antonin Scalia noted that in the law of women’s rights, Ginsburg was “the Thurgood Marshall of that cause.” Her seat should be filled by a Justice who carries forward the vision of a fair, equal, and just society under law.
We envision a world where every person participates with dignity as an equal member of society, regardless of gender. Where every woman is free to decide whether or when to have children and whether to get married; where access to quality reproductive health care is guaranteed; and where every woman can make these decisions free from coercion or discrimination. www.reproductiverights.org