Like many others, my social media feed has been filled with lovely tributes and grateful recognition of Justice Ruth Bader GinsburgRuth Bader GinsburgProgressive group buys domain name of Trump’s No. 1 Supreme Court pick Democratic senator to party: ‘A little message discipline wouldn’t kill us’ Lincoln Project mocks Lindsey Graham’s fundraising lag with Sarah McLachlan-themed video MORE and her incredible contributions. But sadly, I also noticed comments eager to dismiss her as “baby murderer.” Such comments fully mischaracterize this legal giant and reveal an ignorance of the complexity of abortion law in our country.
Ginsburg argued cases at the Supreme Court long before she decided cases there, and her focus was gender equality. She argued and won several important cases that helped turn the tide on securing equal rights for women. Everyone should read about these cases to more fully appreciate how much every woman today owes to her brilliant legal mind.
But one case Ginsburg did not argue was Roe versus Wade. In fact, she represented a very different client at about the same time period. Susan Struck was an Air Force captain serving in Vietnam as a nurse. When she became pregnant, the Air Force gave her the choice to terminate her pregnancy or face immediate discharge. Partly because of her beliefs as a Catholic, Struck wanted to bear the child and place her for adoption. Ginsburg was the lawyer who fought for her.
Ginsburg believed Struck’s case was a better case for the Supreme Court to consider because it showed how the government’s impeding a woman’s choice whether or not to bear a child was a violation of both her rights to due process and to equal protection under the law. If the Supreme Court decided that the government could compel pregnancy, as many states limiting abortion access do today, without concerns about equal protection claims, would it then also be easier for the government to compel abortion?
“One thing that conspicuously distinguishes women from men is that only women become pregnant,” Ginsburg said at her confirmation hearings in 1993. “If you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.” She went on to explain, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
What is happening today with the politicizing of the Supreme Court and the ugly rhetoric about abortion should not be shrugged off as politics as usual. The fight over the timing of filling Ginsburg’s seat is so much bigger than whether the seat is filled by a more conservative or liberal justice. The much greater concern is what President Trump and Senator Mitch McConnell have done to the Supreme Court itself as one of our most important institutions.
It should not be like this. We should all want justices who are chosen for their qualifications, their brilliant legal minds, and their commitment to justice for all, rather than their overt political leanings and how much their appointment will anger the “other side.” We should be able to disagree on particular judicial philosophies and even outcomes while still respecting the institution as legitimate and trustworthy. We do not even have to settle for only moderate judges. Justice Antonin Scalia was confirmed 98-0. Justice Ginsburg was confirmed 96-3. And despite their deep, impassioned disagreements, they shared a mutual respect and friendship.
This is what we must fight for regarding the Supreme Court. If we continue to allow the legitimacy of our Supreme Court and the entire federal judiciary to be destroyed by the rampant hyper-partisanship of the past four years, we all will have lost so much more than a coveted seat or two on the high court. It will threaten to destroy our entire constitutional democracy.
If abortion is the issue of utmost importance to you in this election, then study it thoroughly before you make your decision. It is a highly complex issue in the legal, moral, and biological sense. I once heard a top student at my law school say in a class discussion, “I will be honest. I do not care at all about women’s health. I just want to stop abortions.” That position is not moral. It is not ethical. It is not Christian. It is not even conservative. It is wrong and it is lazy. We must demand better from ourselves, from each other, from our politicians, and especially from our justices.
Diana Bate Hardy is a former attorney who runs @CivicsEdForFamilies, a social media account which promotes civics education and engagement.