Posted on Tuesday October 13th, 2020 at 10:55 am by Aziza Ahmed
This article is the last entry in a symposium on the case law of the late judge Ruth Bader Ginsburg.
Aziza Ahmed is Professor of Law at Northeastern University School of Law.
By the time Ruth Bader Ginsburg joined the Supreme Court in 1993, the court had already decided several important abortion cases, including Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These decisions laid the foundation for abortion jurisdiction for decades to come. Ginsburg would become an important voice and presence on the Supreme Court to ensure that women's health is the focus of the talks on abortion in the country's Supreme Court.
While Roe is the monumental case in which abortion was decriminalized, Casey, who decided a year before Ginsburg took office, decided it would become the defining case for the future of abortion justice. In the Casey case, the General Court used the standard "unreasonable burden". This standard says that the law will be considered unconstitutional if a law has the purpose or effect of placing a substantial obstacle in the way of a woman seeking an abortion before she is viable.
While after Roe attempts began to restrict access to abortion through law, Casey opened the floodgates not only to further legal restrictions on abortion, but also to a serious campaign of misinformation about the abortion process and its consequences. This is especially true of the psychological consequences of an abortion. The Casey plurality, through the interventions of the American Psychological Association and other amici, endorsed informed consent laws that mandated the provision of information about abortion, including its "possible harmful psychological effects." In its brief before the court, the APA argued that this information misrepresented the psychological effects of abortion and that the mandate of providing it could harm women seeking abortion. Casey's decision illustrated two important aspects of the shift in abortion law: First, the continued success of a new strategy of “Laws to Protect Women's Abortion,” which simulated caring for women while attempting to discourage (or gain access to) abortion women to restrict them); and second, the very specific affirmation of the idea that abortion can have negative effects on mental health. This was a departure from the reasoning in Roe, which recognized that aborting an unwanted pregnancy could have negative consequences for the woman.
In view of these newly legitimized anti-election ideas, Ginsburg's presence in court was all the more important. It became a counterbalance to ongoing attempts by anti-election advocates and Conservative members of the court to continue the project of rewriting facts about abortion in order to restrict access. Ginsburg's opinions in two cases show how she pushed back: Carhart v Gonazales (Carhart II) and Whole Woman & # 39; s Health v Hellerstedt.
Carhart II was about a law that called for a so-called "prohibition of partial abortion of births". The law banned an abortion procedure known as "intact dilatation and extraction" that was used for abortions that occurred later in pregnancy. In the case it was asked whether an exception for women's health was constitutionally required. The majority contradicted their previous precedent in Stenberg against Carhart (Carhart I) and took the view that the ban need not contain any health exception. For the advocates of women's health, this was terrible. Doctors clearly advocated the need for a health exception, arguing that in some cases intact dilation and extraction was a safer procedure than other alternatives – and without it, they would be forced to use a procedure that posed a higher risk to the woman . However, the Supreme Court presented the doctors as divided and ruled that given the medical uncertainty, the health exception was unnecessary.
In her dissent in Carhart II and as the only woman on the Supreme Court at the time, Ginsburg made her debut as a passionate advocate of abortion rights and truth-finding. Calling the majority opinion "alarming", she argued that the court did not take the precedent "seriously" by welcoming a ban on "necessary and due process". It is important that, for the first time since Roe, the court "blesses a blessing (d) that invariably protects a woman's health". As her dissent continued, she drove home a point she would emphasize in later abortion law: that the court should protect women's health – and not, as she argued, the majority in this case, a "weak and transparent" justification for a ban on women's health proceedings. She called on the majority to try to provide a moral justification for the ban by relying on an "anti-abortion shibboleth" for which there is no evidence: women who have had abortions suffer from "severe depression and loss of self-esteem ".
Ginsburg's role as a court fortune teller – a judiciary that saw through these barely veiled attempts to ban abortion access – continued as abortion access continued to be attacked. In Whole Woman’s Health, a new law has been passed before the Supreme Court protecting women from unsafe abortions. Doctors who perform abortions must be licensed at a nearby hospital and clinics must meet outpatient surgical requirements. Again, the laws were justified as protecting women's health. The majority of the court crushed the Texas law in question, relying on a careful review of the evidence by the district court. In her brief approval, Ginsburg reiterated the attempt to block women's access to abortion, describing the argument that the laws under consideration would really protect women as "beyond rational belief". In the language developed by lawyers, she referred to these laws as TRAP laws (Targeted Regulation of Abortion Provider).
The consensus opinion of Chief Justice John Roberts on a last term case that struck down a similar licensing privilege law in Louisiana, June Medical Services v. Russo, suggests that the majority of the court is poised to make the false claims of lawmakers seriously when they enact laws that make access to abortion difficult. With the Supreme Court on the verge of becoming more conservative, Ginsburg's absence will be felt most deeply by the many people seeking abortions she has fought to protect.
Symposium: Ginsburg's case law on abortion has given priority to women's health.
SCOTUSblog (October 13, 2020, 10:55 a.m.),