Reproductive Justice?

President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court Justice in 1993

President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court justice in 1993

When Justice Antonin Scalia died on February 13, 2016, it was the death of more than just one man. For the first time in 20 years, the fairly reliable conservative tilt of the Supreme Court vanished. Now there were four generally liberal justices, three remaining consistently conservative justices, and Anthony Kennedy, a moderate who, though usually conservative, could move to the left, especially on social issues, as we saw in his eloquent opinion in support of same-sex marriage. If Kennedy voted with the conservatives, it would result in a tie, not a 5-4 decision. In case of a tied vote on the Supreme Court, the lower court ruling holds, and if there are conflicting rulings in different circuits, we continue with different law in different parts of the country.

Or the court could order a rehearing of a case once a new justice is seated.


The makeup of the Supreme Court is a glaring example of how much is at stake in presidential elections.


The political wheels started turning immediately. Senate Majority Leader Mitch McConnell almost immediately announced that Scalia’s seat should be filled after “the American people” weigh in during the presidential election — Republicans always seem to forget that the American people have already weighed in twice by making Barack Obama president. This categorical rejection of any Obama nominee, no matter who, is unprecedented. Scalia’s seat was apparently sacred, and could only fairly be filled by a Republican appointee. McConnell does not seem to consider that the next president might also be a Democrat.

The change in the balance of the court was apparent in the first of two cases concerning reproductive health that were scheduled to be heard this month. (The second case, Zubik v. Burwell, will be argued on March 23.) At SCOTUSblog, Lyle Denniston analyzed the oral arguments in Whole Woman’s Health v. Hellerstedt. It was always clear that the outcome would hinge on Justice Kennedy, and, before Scalia’s death, that in all likelihood the Texas law requiring abortion doctors to have admitting privileges at nearby hospitals, and abortion clinics to meet ambulatory surgical clinic requirements, would be upheld.

Denniston posits that Kennedy’s questioning showed his reluctance to have the decision result in a tie. When the capacity of remaining clinics to meet the abortion needs of Texas women was raised, Kennedy wondered whether the case should be sent back to the lower courts so they could hear evidence from the clinics about their capacity. This would indeed give quantifiable evidence whether Texas women would face an undue burden. Kennedy’s other concern seemed to be whether this law would lead to more second-trimester abortions, which are less safe and therefore would not enhance women’s health or make women safer, which the Texas lawyers kept saying was the intent of the law.

This case has been discussed here in more detail; I use it only to illustrate what is really at stake in this year’s presidential election. The balance has shifted on the Supreme Court, and that will play out in cases that affect our reproductive health, our economic health, and our political health. Because a tie vote is bad law, an eight-person court with four liberal judges and a swing vote tilts toward the liberal side. The next case concerning our reproductive health, Zubik v. Burwell, comes out of challenges to the Affordable Care Act’s requirement that health insurance companies include contraception in the list of preventive services provided without cost to the patient. Several religiously affiliated employers or closely held private businesses object that having to fill out a form or notify someone that they won’t allow their insurance to cover contraception, so that employees can be covered under a separate policy, violates their religious freedom. Most lower courts have found that these employers are not enabling sin, as they claim, by filling out a form, and appellate courts have upheld these decisions or refused to hear the appeals. One appellate court, however, found for the plaintiffs, and so in the event of a tie vote in Zubik v. Burwell, your ability to get your insurance to pay for contraception would depend on where you live.

When Justice Scalia did not recuse himself from hearing a case that involved then-Vice President Dick Cheney after they had returned from a hunting trip together, he gave as one reason that “even one recusal impairs the functioning of the court,” as stated in the Court’s recusal policy. A tie vote leaves unsettled law. The Republican leadership might want to consult Justice Scalia’s own opinion when deciding whether or not to do the job the Constitution gives them.

Nonetheless, the Senate Republican leadership may get its way, in which case the next president will have to name Scalia’s replacement, and several justices are old enough that the next president will have to name perhaps two additional justices. I’d rather have a Democratic president I don’t like appoint the people who will decide how much control women will have over their own bodies. A conservative president could tip the scales of justice for generations.

Just looking at the current makeup of the court, we can see how important the political position of the appointing president is. Two of the liberal justices, Ruth Bader Ginsburg and Stephen Breyer, were appointed by Bill Clinton, and the other two, Sonia Sotomayor and Elena Kagan, by Barack Obama. Of the conservatives, Clarence Thomas was appointed by George H. W. Bush, and John Roberts and Samuel Alito by George W. Bush. The swing vote, Anthony Kennedy, took his seat during Ronald Reagan’s last year in office.

As you probably know, Hillary Clinton and Bernie Sanders are competing for the Democratic nomination, with passionate supporters on both sides. I have been phone banking for one of the candidates, and have been talking with other volunteers and with Democratic voters when I call. On both sides, I find people who say they don’t know if they will vote for the other candidate should that candidate become the nominee. Clinton supporters might have misgivings about going to the polls for Sanders, and Sanders supporters may be uneasy about casting a vote for Clinton. This worries me. While it may be noble to refuse to vote for what one considers to be the lesser of two evils — and I myself have taken that position many times — in this case there could be dire consequences.

There are stark differences between Republicans and Democrats on more life-and-death issues than just reproductive health. Even Noam Chomsky has said that he will vote for the Democrat in this year’s presidential election, pointing out that there are such significant differences between the parties on issues such as climate change and foreign policy that our very survival could be at stake.

The Arizona Presidential Preference election will be held on March 22. I urge you to go to the polls and vote for the candidate of your choice if you haven’t already done so with early voting. But in November, there is no room for internecine strife. In the words of Benjamin Franklin as he was about to sign the Declaration of Independence, “We must, indeed, all hang together, or most assuredly we shall all hang separately.”

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