Ruth Bader Ginsburg is an icon for many reasons: her astonishing career as a lawyer who toppled multiple barriers to equality for women, her appointment as only the second female US Supreme Court justice, and her personal fortitude (she was known, for example, for doing push-ups well into her eighties). But RBG, as she was known to admirers, left another important legacy.
She brought a unique and genuine voice to the Court regarding women’s health. Her court opinions (often in dissent) called to task the legal interpretations and principles of her male colleagues that obscured the realities of women’s health and lives and that were often founded on subtle (and not so subtle) stereotypes about women’s physical and mental vulnerabilities. Ginsburg’s opinions brought a laser focus to how the laws in dispute directly impacted women’s health and the ways in which women’s health is inextricably tied to their economic opportunities and equality with men. She also refused to let the male-dominated court depend on their assumptions about women while ignoring medical and economic evidence that contradicted their reasoning. By doing so, she ensured that women’s voices were not silenced by a court centered around the male norm. Below, I highlight some of the cases in which Ginsburg’s voice was so critical to advancing women’s health.
Scrutinizing Stereotypes About Women’s Physical And Mental Weakness
Perhaps Ginsburg’s crowning achievement for women’s rights was her majority opinion in US v. Virginia, et al. (1996). Although not explicitly about women’s health, her opinion in the case demonstrated her continued commitment to dismantling stereotypes about women’s mental and physical capacity, fortitude, and ability to determine their own fates. When women sued the publicly funded Virginia Military Institute (VMI) for its refusal to admit women, Virginia argued, in part, that admitting women would undermine the “adversative model of education” that was critical to military training for men. While admitting that some women might be able to withstand the “[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values,” the state argued that VMI should not have to design its education around “the exception.”
Ginsburg would have none of this argument. She had spent her career as a lawyer and judge ensuring that courts “take a hard look at generalizations and tendencies” assumed about women’s abilities, especially when these were used to exclude women from male society. “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity,” Ginsburg wrote. Stereotypes about biological sex differences and women’s primary role as mothers not only erect obstacles to women’s achievement, but they also harm women’s health by reducing access to appropriate health care, such as contraception and abortion.
RBG was determined to dispel long held myths, perpetuated by medicine, about women’s physical frailty, irrationality (often attributed to female hormones and menstrual cycles), and hysteria (including the propensity to exaggerate symptoms of illness). She knew well, including from her own experiences, that flawed assumptions about women’s bodies and health, along with entrenched social norms, create enormous barriers for women’s achievement and independence. Ginsburg’s opinion in the VMI case raised the level of scrutiny the Court would use to deconstruct socially constructed gender differences presumed to be natural or biological upon which many laws are based.
It is important to note that Ginsburg was determined to demonstrate through her own life the strength, endurance, and fortitude she knew women were capable of. Despite her own and her beloved husband, Martin’s, multiple bouts with cancer, she never missed a day on the Court. Resolved to maintain her place in the male-dominated highest court, she endured what must have been debilitating physical discomfort, fatigue, and disability to ensure that a woman’s voice was not ignored.
“Self-Evident”? Exposing The Court’s Distortions Of Women’s Health And Capabilities
Unfortunately, much of Ginsburg’s time on the Court was spent writing in dissent. In the realm of women’s health, her dissents were most often responses to two failures she saw in the all-male majority opinions: their erroneous representations of women’s bodies, experiences, and capabilities as in US v. Virginia, et al. (1996), and their discounting of valid medical evidence about women’s health. The Court’s willingness to frame the law around groundless propositions about women’s “tendencies” not only rankled her sense of justice and equality, it also exposed how law shaped by the unquestioned male perspective directly harmed women.
One of her more pointed dissents came in Gonzalez v. Carhart, et al. (2007) in which the Court upheld the federal “Partial Birth Abortion Ban Act of 2003,” making intact dilation and extraction, a procedure typically used in the second trimester before viability, illegal. Congressional findings claimed the procedure to be immoral and “medically unnecessary to preserve the health of the mother.” Writing for the majority, Justice Anthony Kennedy agreed. But Kennedy went beyond this finding to question whether the procedure was also harmful to women emotionally:
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow,” (emphasis mine).
He continued, “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound” when she comes to fully understand the immorality of the procedure, (emphasis mine).
Kennedy’s “self-evident” observations about a woman’s need to be protected by the state from her bad decisions and lack of understanding about the procedure sent Ginsburg’s gender stereotype radar into overdrive. “The Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices…,” she dissented. Ginsburg made it clear that law should not be based on faulty notions of a woman’s emotional frailty but instead on her self-determination: A woman’s destiny “must be shaped…on her own conception of her spiritual imperatives and her place in society.” Almost reprimanding the majority for their arrogance, she reminds the court: “Women, it is now acknowledged, have the talent, capacity, and the right ‘to participate equally in the economic and social life of the Nation.’” It is important to note here that studies of women’s feelings about their abortions refute the all-male majority’s “self-evident” conclusions. The majority of women do not regret their decision or have long-lasting emotional or mental health problems associated with having an abortion.
Ginsburg was also clearly outraged by the majority’s willingness to uphold an abortion restriction that could jeopardize women’s health and to obscure medical evidence to justify its decision. Refuting the majority’s assertion that there was not enough medical evidence to suggest that the ban on the procedure would harm women’s health, Ginsburg pointed out that the Court was seeking “absolute proof” rather than “appropriate evidence.” The Court, she argued, had ignored compelling evidence provided by the American College of Gynecologists and other medical experts asserting that the procedure, which is rare, is safe and sometimes medically necessary to preserve the life and health of a pregnant woman. The Court’s justification for the ban, Ginsburg argued, was based on its own discomfort with the procedure, not about women’s health. In fact, she emphasized the ban did nothing to reduce abortion; it only made it less safe by forcing providers to use other riskier methods.
As the anti-abortion movement continued to claim that abortion restrictions were based on protecting women’s health, Ginsburg called out what she saw as a cynical and insidious tactic to couch limits on women’s reproductive rights as in their own best interest. To ensure that the Court did not overlook this, she wrote a concurring opinion in Whole Women’s Health v. Hellerstedt (2016), which struck down a regulation requiring admitting privileges for health care providers performing abortions. Again turning to medical evidence demonstrating the safety of abortion and the failure of the state to prove that requiring admitting privileges for providers would further protect women’s health, she said, “Given those realities, it is beyond rational belief that [the Texas law] could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’” Increasingly concerned about the growing restrictions on abortion in some states, she pointed to what would happen should it become out of reach for most women: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”
Women’s Health Is Inextricably Tied To Economic Equality
Ginsburg viewed a woman’s right to self-determination as inextricably linked to reproductive rights. She frequently quoted Justice Sandra Day O’Connor’s majority opinion in Planned Parenthood of Southeastern Pennsylvania, et al. v. Casey, et al., the abortion case upholding Roe v. Wade, in which she asserted, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Most of the cases that make their way to the US Supreme Court relating to reproductive rights involve access to abortion. However, in 2010, the state’s role in expanding access to contraception was in dispute. The Women’s Health Amendment to the Affordable Care Act (ACA) required that new insurance plans cover certain preventive services, including contraception, without cost sharing. Preventive services for women had initially been overlooked in the drafting of the ACA. Senator Barbara Mikulski (D-MD) remedied this oversight by sponsoring the Women’s Health Amendment.
Taking issue with the requirement, two companies, Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corporation, sued, arguing that the requirement violated their rights under the Religious Freedom Restoration Act. Specifically, they objected to four of the 20 covered birth control methods included in the HHS regulations because they were “connected to the destruction of the embryo” and therefore, in their view, immoral. In Hobby Lobby v. Burwell (2014) once again in the dissent, Ginsburg vehemently rejected the majority’s holding that the government had not offered the “least restrictive means” in burdening the religious rights of the companies.
In addition to explaining why the Court’s recognition of the religious rights of closely held corporations was highly questionable and problematic, Ginsburg honed-in on what this decision would mean for real women. Joined this time by two other women justices, Elena Kagan and Sonia Sotomayor, as well as Justice Stephen Breyer, she went to great lengths in her dissent to draw the linkages between women’s self-sufficiency, health, and access to contraception. Citing the briefs of women’s health experts and medical authorities, she laid out the public health and economic arguments for why the contraception mandate was so critical to women’s lives: “The mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children…[and] safeguard[s] the health of women for whom pregnancy may be hazardous, even life threatening.” She also highlighted that for many women contraception has “benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.”
Citing the legislative history, Ginsburg also carefully explained the justification for the Women’s Health Amendment: Prior to the ACA, women routinely paid more for health insurance than men because they have different health care needs. They were also more likely to bear the burden of the cost for contraception. By ensuring that women have access to low- or no-cost contraception, the government was reducing economic inequality for women, promoting their health, and supporting public health by reducing unwanted pregnancy. Shining a light on the realities of women’s lives, she emphasized that an intrauterine device, which the companies refused to cover due to religious objections, is one of the most effective but also the most expensive methods of contraception, costing nearly a full month’s salary for a full-time worker earning minimum wage. Increasingly, Ginsberg focused on the way that restricted access to contraception and abortion disproportionately harm low-income women. She was highly attuned to how the effects of laws are borne more heavily by the less privileged.
Ginsburg shouted from the bench what was invisible in the majority’s reasoning: the grave consequences for women, especially low-income women, of ignoring the realities of their health and its role in their family and economic lives. Once again, she meticulously cited the medical, public health, and economic evidence, while raising the voice of everyday women, which were ignored, and thus, silenced in the majority opinion. RBG’s voice will never be replaced on the US Supreme Court. She was one of a kind. But her legacy, left through her opinions, leaves an enduring gift: a refusal to allow the law and the highest Court to go unchecked when it ignores the realities, and the power, of women’s health and lives.