Here are some people who are not about to hop on the notorious Ruth Bader Ginsburg meme party train: Conservatives condemning the senior Supreme Court Justice in the minority for speaking candidly about a Texas law that has already shuttered nearly half of the state's abortion clinics. A handful have called on her to recuse herself should the court consider the law, which has already had by far the most devastating impact of all the recent crop of state-level abortion restrictions.
In an interview with The New Republic published earlier this week, Ginsburg discussed the impact overturning Roe v. Wade would have, saying, "Women who can’t pay are the only women who would be affected" if some states could ban abortion. Her interviewer, Jeffrey Rosen, responded, "So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?"
Ginsburg replied, "How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business." She added, "The courts can’t be trusted either," and listed a number of previous Supreme Court decisions, including one in which she fiercely dissented.
In fact, since an appeals court and a majority on the Supreme Court allowed parts of the law to go into effect while it is being challenged -- the requirement that abortion providers gain admitting privileges at local hospitals -- nearly half of Texas's abortion clinics have already closed. Pending another decision expected any day now, all but six may soon close under a separate requirement that clinics turn into mini-hospitals. Expert testimony in the trials over the law has shown that its burden disproportionately falls on low-income women, who were the people Rosen asked about. So while Ginsburg's description of the Texas law was arguably descriptive, it was also a statement of fact.
Still, the right immediately seized on Ginsburg's comments.
In a post headlined, "Did RBG Disqualify Herself From Texas Abortion Case?"Josh Blackman, a law professor at South Texas College of Law and an influential blogger, wrote, "it seems that Justice Ginsburg has made up her mind about this law. It is not a health measure, but a law to put clinics out of business." (The American Medical Association and the American College of Obstetricians and Gynecologists have both explicitly said the law is not a "health measure" in the sense of keeping women safer; they have stated that it does the opposite.)
What about the fact that Justice Antonin Scalia frequently makes incendiary comments in the press about issues that may come before the court? "What makes this 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 wrote. "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."
The criticism has continued to spread. "This comment by a justice on a specific law would seem the very stuff of which recusal obligations are made," wrote Ed Whelan at The National Review. He also wrote, "I don’t see how anyone could read Ginsburg’s two sentences as reflecting anything other than a very negative opinion of the Texas law and as thus leading a reasonable observer to question her impartiality." Casey Mattox, senior counsel with the conservative legal group Alliance Defending Freedom, jumped in too, as did Priests for Life, which is currently suing the Obama administration over signing a contraceptive coverage opt-out form.
“Supreme Court justices are not supposed to announce how they will rule on a case before they even hear oral arguments. It’s a question of basic integrity and common sense.” said Fr. Frank Pavone, National Director of Priests for Life. “Justice Ginsburg has already announced to the world how she would vote on a key question regarding Texas’s abortion law that’s now in federal court. That’s wrong and she should remove herself from any decision on that law.”
Amanda Frost, a law professor at American University, told Legal Times that Ginsburg “should have erred on the side of caution and avoided making any statements about legislation at issue in a pending case,” but that ultimately her comment didn't meet the threshold for recusing herself from the case, because it was a statement of fact.
What actual suspense would there be in the world over how Justice Ginsburg would vote if the Texas law came before the Court? She has spent decades on the bench robustly defending reproductive freedom, and the Texas law is one of several similar ones that would shut down dozens of safe and legal clinics across the country. Unlike in the recent McCullen v. Coakley case, in which Ginsburg voted with a unanimous court to strike down Massachusetts' abortion clinic buffer zone, there are no other competing rights like the First Amendment at stake.
On the other hand, the preliminary decision on the Texas law was 5-4. If defenders of Texas's abortion law somehow manage to work the refs and disqualify the vote of court's most celebrated women's rights advocate, their chances are that much better.