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. Continue reading

Courting Women

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

“… [T]he difference of having three women on the Supreme Court. I think that all the justices obviously are important in that court, but it really makes a difference to begin to have a court that more reflects the diversity of this country, and I think women who can really speak from a woman’s point of view, just how impactful these kind of laws that specifically target women and women’s access to health care, how impactful they are. And I was really grateful to have the women’s voices in the room.”

Cecile Richards, Planned Parenthood president, March 2, 2016, commenting on that day’s oral arguments in Whole Woman’s Health v. Hellerstedt

Me, too, Cecile.

Courting women. Let’s snatch that phrase from the parlor in a Jane Austen novel and lob it into the Supreme Court chambers, making courting not the passive “pick me” word of yesteryear, but an assertive “empower me” word of today.

Power, judiciously applied, is what Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan demonstrated during oral arguments in Whole Woman’s Health v. Hellerstedt. They formed a tag team of relentless logic, assertiveness, and deep understanding of the predicament of women in Texas needing timely, accessible abortion care — and not getting it. The court was probing two provisions of Texas HB2, the law that requires that (1) physicians performing abortions must have admitting privileges at a hospital near their clinics and (2) all abortions must be performed in ambulatory surgical centers (ASCs, mini-hospitals). (See SCOTUSblog “Round Up” and Roe v. Wade: Texas Then and Now for additional background on this important case.)

Justices explored the elements that create an unconstitutional “undue burden” for women seeking an abortion by questioning attorney Stephanie Toti, representing Whole Woman’s Health, and Solicitor General Scott Keller, representing Texas. Here are some highlights: Continue reading