Justice Ginsburg is often quoted as having said, “Fight for the things that you care about, but do it in a way that will lead others to join you.” She did exactly that when it came to reproductive rights and abortion in particular. Justice Ginsburg fought, she cast decisive votes, and she led in a way to bring others along by speaking the truth about why abortion matters: Abortion rights are about equality, restrictions on abortion about the forever story to treat women as second-class citizens. Her mark is in the jurisprudence, it’s on our protest posters, and it’s in our hearts.
Writing in dissent in Gonzales v. Carhart, a case in which the court upheld a federal restriction on abortion, Justice Ginsburg plainly stated: “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
It was a point she had been making since her 1993 Senate confirmation hearings. In that hearing, Justice Ginsburg emphasized: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. … When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
Justice Ginsburg wrote about women and women’s equality as she spoke about abortion. (At the time, there was not yet a broader awareness of the importance of abortion for transgender men and nonbinary people). She recognized that when legislatures spoke of banning or restricting abortion, women were their target. Restrictions on abortion were part of the forever effort and set of laws restricting women that Justice Ginsburg could not abide.
She spoke most robustly in her dissent in Gonzales about the sexism that is foundational to abortion restrictions, and that infected the majority opinion. In that case, Justice Kennedy, writing for the court, upheld a federal law outlawing certain abortion procedures. In the decision, he infamously wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort” and further opined that women’s regret could be greater upon learning about the procedure used for their abortion. The court’s solution: Ban the abortions to avert regret.
Justice Ginsburg, in turn, is famous for her response. “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.” She pointed as illustration to Supreme Court cases from the late 19th and early 20th century upholding a state’s refusal to license a woman to practice law and upholding “protective” legislation that limited the number of hours a woman could work — provisions that had been justified by “our delicacy.” She pointed to passages in which the court justified limited working hours given our “physical structure” and the demands attendant to “a proper discharge of her maternal funct[ion].” She quoted the court in the lawyering case reasoning that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.” Men, one of the cases pointed out, were, “or should be, woman’s protector and defender.”
In other words, she called out the court — 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 us from regret. As she said, “The solution the court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. … Instead, the court deprives women of the right to make an autonomous choice, even at the expense of their safety.”
Her implicit message was even more pointed. One of the decisions to which she pointed had language more explicit than that which she quoted:
“It is impossible to close one’s eyes to the fact that she still looks to her brother, and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the wellbeing of the race — justify legislation to protect her from the greed, as well as the passion, of man.”
The other justices surely understood the reference. The majority opinion treated women as lesser, as children.
Justice Ginsburg was the only woman on the court at that time
She garnered our admiration and love like no other justice who voted to strike abortion restrictions because she spoke the truth about what was at stake. She spoke the truth about the connection between restrictions on abortion and other forms of sex discrimination.
With Justice Ginsburg’s death, we’ve lost a champion, a truth teller, and a vote. Those who care about abortion, and gender equity, have reason to worry. The last decision of the court to address an abortion restriction struck the restriction, but only by a vote of 5-4. President Trump has promised to only nominate justices who oppose Roe v. Wade. The legal right to abortion, which our movement has relied upon to fend off as many attacks as possible, is in jeopardy. As we speak, the Supreme Court is considering its next abortion case, our challenge to an FDA policy that requires patients to unnecessarily risk COVID-19 exposure to access abortion care. The question is whether remaining justices will allow the Trump administration to reinstate that policy during the public health crisis, endangering lives of patients and providers, just to punish those who need an abortion during a pandemic.
With Justice Ginsburg’s death, the fight to protect reproductive freedom is more urgent than ever, as is the need not to settle for what we have now. But Justice Ginsburg taught us how to carry on from here. She taught us how to imagine a world that doesn’t exist yet and to fight to bring it into existence. She was caregiving for her family and arguing cases at the Supreme Court in a decade where there was no such model. She argued for the court to strict laws that discriminated based on sex when there wasn’t yet any constitutional jurisprudence about sex discrimination. With two words, she taught us how to lead even when we can’t win: “I dissent.” And she called on us to call out abortion restrictions as gender discrimination. Justice Ginsburg taught us that the only way is forward — and we will continue to follow her there.
Louise Melling, Deputy Legal Director and Director of Center for Liberty, ACLU