Conservatives are demanding that Ruth Bader Ginsburg should recuse herself from hearing abortion cases on the U.S. Supreme Court after she made remarks about a restrictive Texas law.
The Supreme Court justice said in a lengthy interview with The New Republic that the overturning of the Roe v. Wade decision would be a “worst-case” scenario – particularly for non-affluent women.
“Any woman who has the wherewithal to travel, to take a plane, to take a train to a state that provides access to abortion -- that woman will never have a problem,” Ginsburg said. “It doesn't matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can’t pay are the only women who would be affected.”
Conservatives were most upset when she said state legislatures and courts could not be trusted to ensure poor women had access to reproductive health services.
“How could you trust legislatures in view of the restrictions states are imposing?” Ginsburg said. “Think of the Texas legislation that would put most clinics out of business.”
Conservative law professor Josh Blackman said Ginsburg's comments about the Texas law, which is currently being challenged in the 5th Circuit Court and could go before the U.S. Supreme Court, were problematic.
“It seems that Justice Ginsburg has made up her mind about this law,” Blackman wrote. “It is not a health measure, but a law to put clinics out of business. This would be a per se ‘undue burden’ under Casey. She doesn’t trust the Texas legislature in the least.”
The 1992 Supreme Court decision in Casey v. Planned Parenthood upheld the right to an abortion, and the court generally rules against legislation that places an “undue burden” on fundamental rights.
Anti-abortion activists argued that Ginsburg’s remarks betrayed her support of abortion-rights arguments.
“Propriety aside, the comments also evince an unmoved confidence in the abortion industry’s assertions, even when they are proven false,” wrote Casey Mattox at LifeNews.
Mattox argued that abortion-rights advocates made false claims about the impact on women’s health when the Supreme Court upheld a ban on late-term abortions in the Gonzales v. Carhart ruling.
“One would hope that Justice Ginsburg, having been persuaded by abortion zealots to ring the alarms in Carhart would become more mindful of believing the abortion industry’s press releases as verified fact,” Mattox wrote. “Unfortunately, it appears that with the Texas law that she is falling into the same trap.”
Father Frank Pavone, National Director of Priests for Life, demanded Ginsburg recuse herself if the Texas law goes before the Supreme Court.
“This really boils down to what Justice Ginsburg values more, protecting the integrity of the Supreme Court, or protecting the abortion industry,” Pavone said. “This is not an abstract, theoretical matter – Justice Ginsburg has already decided a specific case she hasn’t even heard yet. By any logical standard, she should recuse herself from any Supreme Court decision on any part of Texas’s abortion laws.”
Other justices – Antonin Scalia, in particular – have made private comments about issues that could be decided by the court.
For example, Scalia has said the Constitution does not guarantee a right to privacy, which supports the Roe v. Wade decision and the 1965 Griswold v. Connecticut decision that guarantees a right to contraception.
Scalia, whose dissent in the ruling overturning a federal ban on same-sex marriage, has also compared homosexuality to bestiality and murder.
Blackman, the South Texas College of Law professor, waved away those comments as irrelevant to the Ginsburg issue.
“What makes (her) comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other,” Blackman said. “Scalia and Ginsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents -- not specific cases that may come before the Court.”
He did, however, note a comparable comment by Scalia.
“RBG’s comments seem akin to Scalia’s comments about the pledge of allegiance while the Newdow litigation was making its way through the lower courts,” Blacman said. “Scalia did recuse there.”