Correction: This article was updated to alter the image to a cropped version.
Supreme Court Justice Ruth Bader Ginsburg’s dying wish was to not be replaced until a new president has been installed, leaving the Trump Administration to rapidly work to replace her before the quickly approaching election.
In the weeks following the death of RBG, known for her long-time fight for gender and racial equality, there has been much speculation regarding the implications of her potential replacement.
President Trump’s nominee Judge Amy Coney Barrett, places a significant target on Roe v. Wade, which has arguably been under attack since the start of the current administration, however upon the passing of “The Notorious RBG,” reproductive rights now seem that much more precarious.
For many, Ginbsurg represented hope and the protection of rights, perhaps an unfair burden for an 87-year-old with pancreatic cancer to bear. And now, President Trump’s selection to replace her, Barrett, places a threat on the progress Ginsburg fought for throughout her career.
This replacement appears particularly controversial as it is not only an election year, but now less than a month away from the presidential election. In 2016, Republican Senate Majority Leader Mitch McConnell prevented President Obama from appointing Merrick Garland as Antonin Scalia’s replacement – a block attributed to the fact that it was an election year. According to McConnell, the replacement should be chosen following the election by the newly appointed president.
Despite the current administration’s divisive politics, attacks on reproductive rights and the steps leading the United States to this very point began long before.
Of the Justices on the Supreme Court, Trump appointees Brett Kavanaugh and Neil Gorsuch, along with Clarence Thomas, Chief Justice John Roberts, and Samuel Alito are Federalist Society ties.
The Federalist Society’s current and former members also include the federal appeals court, with 25 out of 30 court judges Trump has appointed. Trump’s current and former Justice Department leaders, and Senate Majority Leader Mitch McConnell.
“Basically, it’s conservative law professors and students working together to articulate a legal philosophy, and to organize in order to sort of identify talents that can serve as judges, and to advocate with Republican presidents for the nomination and confirmation of those people.” Founded in 1982 at the Yale, Harvard, and University of Chicago Law Schools, Atkinson explained that “the model is set by the Federalist Society” when it comes to influencing federal court appointments made by the president.
A part of this rationale set forth by the Federalist Society has involved developing a central theme to unite and inspire voters, influencing public opinion in a way that the left has not been able to, said Atkinson.
“… voters on the right have been really paying attention to the court for much longer than voters on the left. The left care about the issues in front of the court, but they’re not voting like the courts on the line in the same way that Republican voters have done for quite some time. So I think that the Federalist society has played a role, a large role in that and kind of galvanizing that urgency, of course,” said Atkinson.
Along with this, the courts have shifted from being nonpartisan as they were intended to assuming a far more biased stance, explained Atkinson.
“The justices have always voted in an ideological way. More judges were in the middle, rather than on the far left or the far right,” said Atkinson. Additionally, prior to Roe v. Wade, presidential parties and legal movements didn’t organize with the intent to control matters, said Atkinson.
“ [Judges] voted in a reliable ideological way. Roe v. Wade is sort of an inciting event, in the sense that although judicial politics mattered a whole lot . . . but Conservatives are really mad as a result of Roe v. Wade, and they really kind of start to organize,” he said.
So what about Barrett, the Supreme Court pick with less than 3 years on the 7th Circuit, who would also be the youngest Supreme Court Justice following her appointment, according to “Politico”?
“She’s been at the top of their list,” LBCC American history of women professor Vanessa Crispin-Peralta said, referring to the Federalist Society.
“You know, despite her lack of experience … everything she has, has been built on what RBG did, but everything she’s for is in direct opposition to what RBG did. And so we know her decisions will undo her legacy, or will try to undo her legacy. And I think that’s very intentional, right? It’s pouring salt in the wound. It’s not just saying we won, but we won, and now we’re gonna dance around and we’re gonna celebrate and we’re going to make you pay,” Crispin-Peralta said.
Barrett’s religious affiliation with the Christian community called “People of Praise” has been a cause for controversy. People of Praise reportedly opposes abortion, gay rights and marriage equality, and regards men as “leaders” or “servant leaders” of their families, according to Joan Walsh in “The Nation.”
Crispin-Peralta said she suspected this choice was not at all coincidental.
“Choosing a religious woman makes it harder to criticize her. Because, everyone who says she’s not qualified, ‘What, you don’t think a woman is qualified for this job?’ Everyone says her extreme religious ideology is problematic for interpretation of the Constitution. ‘Why do you hate freedom of religion?’ So they’re being very strategic in their choice to try to kind of sweep the leg out from under her opponents and basically gut the opposition,” she said.
Atkinson speculated, “I think as far as the type of voter that [Trump] needs, he needs her base.”
According to Atkinson, swing voters are generally not ideologically motivated, but would be attracted more to the image that Barrett projects.
Atkinson said that another key factor influencing selection was age. “Presidents make their legacy… based upon the kind of influence they have on the court after they are no longer present,” Atkinson said. Nominating 48-year-old Barrett would essentially ensure continuing political influence for future generations.
Regarding Barrett’s staunch opposition to abortion and gay marriage, Atkinson said that she has a “clear record of how she’s going to decide cases,” making her a reliable pick for Republicans.
Previous Republican presidents’ nominees who appeared more “open minded,” ended up voting in a less conservative way than anticipated, said Atkinson. “They want somebody who is crystal clear on what they’re going to do. There’s no way [Trump] would find somebody that people would look at and say, ‘Wow, she seems really open minded. She seems like she could go either way.’ Because the Republicans are scared to death of that type of person.”
Considering Barrett’s clear opposition to reproductive rights, just how protected is abortion under the Constitution?
Atkinson said that the 14th Amendment essentially holds two major clauses: the equal protection clause and the due process clause.
“The due process clause means basically, states have to treat people fairly. And so a lot of the discrimination stuff is based upon the equal protection clause, and how you apply the equal protection clause, at least with regard to women. But with regard to gender based discrimination, I think it’s mostly equal protection,” he said.
“Reproductive rights are whole lot more vulnerable, and that’s because they are based on a right to privacy, and there’s nothing very explicit about the right to privacy in the Constitution. It’s an interpretation of the Constitution, it’s not as straightforward as equal protection,” said Atkinson. “By the time you’re in the 21st century, it seems to very clearly apply to gender based discrimination.”
As for the right to privacy, “… its establishment as a precedent and an interpretation of the Constitution happens in 1965, and it has to do with access to contraception.” Regarding the 1965 case, Griswold v. Connecticut, Atkinson said, “Every judge in the majority has a story that the Constitution has a right to privacy, but they all have a different story, and that’s a problem.”
As an example of how the legal system has evolved, Atkinson cited Brown v. Board, the landmark decision deeming that segregated schooling is unconstitutional, overturning Plessy V. Ferguson as a result.
Said Crispin-Peralta, “[Roe v. Wade] falls in that grey area between that strict scrutiny, heightened scrutiny area, because it only applies to people who have uteruses. Nobody’s talking about taking away condoms. People are only talking about reproductive rights as applied to people who can bear children. That makes it more complicated.”
Levels of scrutiny are essentially guidelines to help courts make determinations, considering factors such as sensitivity of issues and level of necessary protection involved. Race is considered the highest level of scrutiny, while gender is regarded to be an intermediate level.
Part of RBG’s work was fighting for an increased level of scrutiny for women, essentially redefining what heightened scrutiny is, according to both Crispin-Peralta and Atkinson.
Historically, gender classifications have been regarded as reasonable by courts, such as in the case of drafting (although drafting officially ended in 1973) which is why it is not considered to be under strict scrutiny.
“What feeds into that decision is a long history of protective legislation for women, so these arguments are that the state has a vested interest in protecting women or protecting motherhood, or whatever that might be, so if you use that strict scrutiny standard, can you have protective legislation?” said Crispin-Peralta.
Crispin-Peralta cited morality and the legislation of morality as a key factor in the Roe v. Wade debate. “It’s so wrapped up in morality questions. It’s not purely a gender issue, that those standards become mushy and complicated. When we look at the court they look at it and use these criteria and standards, and does the interpretation of the 9th Amendment allow for this? But we know the unstated purpose behind all of them is less about those criteria and more about what the moral implications are, and I see this more as legislating morality than reproductive rights for women per say, but ‘this is what is moral and right, and we will legislate from that from the bench,’ because it’s not in line with what the American people are actually in support of.”
Atkinson said that the obstruction of reproductive rights could be a slower process, rather than a sudden and dramatic removal. “What the liberals would like is some big declaration that Roe v. Wade has been shot down, and then to say ‘okay, we’re packing the court,’ and the Conservatives would say ‘how dare you violate history?’”
Regarding packing the court and speculations that this could be the Democrat’s response upon a Biden win, Atkinson said that Democrats have made little to no comment on the possibility.
Atkinson said, “So basically Roe v. Wade is establishing that theres this fundamental right to access of abortion . . . but if it truly is a fundamental right, we can’t have those restrictions that obviously some states do have those restrictions.”
Regarding public opinion, Crispin-Peralta said that broadly, Americans agree on this issue. In fact, the Pew Research Center reported that 61% of Americans believe that abortion should remain legal in all or most cases, with 70% of people saying they do not wish for Roe V. Wade to be completely overturned.
“So it’s not like, ‘Oh, we have to win over all these people, because they don’t understand reproductive rights. They don’t understand what the stakes are.’ I think they do. I think that that part of the work is done. So I think there really is this, like, making the connection between those rights and the vote and what your vote will actually do. That’s the work,” said Crispin-Peralta.
According to the Guttmacher Institute, between January 2011 and July 2019, states enacted 483 new abortion restrictions, accounting for nearly 40% of all abortion restrictions enacted by states in the decades since Roe v. Wade. The most common state-level abortion restrictions are parental notification or consent requirements for minors, limitations on public funding, mandated counseling designed to dissuade individuals from obtaining an abortion, mandated waiting periods before an abortion, and burdensome regulations on abortion facilities.
For Californians, abortion is protected by the state. Crispin-Peralta said, “California in particular, it’s in our state laws. Essentially, what happens is lets say, they completely overturn Roe v. Wade. Now, on a federal level, this has been decided it’s no longer a good law, so now each state determines their own laws of how this is going to work.”
13 states including Calif., along with Washington D.C. have laws protecting abortion in the case of a federal overturning, with 21 states having laws that could restrict legal access to abortion.
Said Crispin-Peralta, “There’s a certain number of states that have trigger laws, so they have laws on the books that say if Roe v. Wade is overturned, immediately abortion is illegal in this state. Others still have laws on the books from pre Roe v. Wade that could go into effect, and others are ambiguous, and would have to at a state level make a decision about what they’re going to do. For people who really care about abortion access, the answer is vote in your local elections, vote in your state elections to change your state legislatures, because they’re gonna have the most impact on your actual day-to-day life, as opposed to the Supreme Court.”
Atkinson said that courts have historically helped people who are privileged, rather than those who are most vulnerable, so a loss of reproductive rights largely impacts marginalized people in red states. Women with the financial resources to travel out of state for an abortion would likely continue to be able to do so.
Even with Roe v. Wade still instated, states have the power to make abortion less accessible, without technically making it illegal. According to Guttmacher, in 2017, 87% of U.S. counties had no clinics providing abortion, with 38% reproductive-age women living within those counties. Furthermore, in 2014, one third of women who had an abortion had to travel more than 25 miles one way.
For Californians interested in taking action, Crispin-Peralta suggested looking into national organizations that put resources into local campaigns, such as NARAL and Planned Parenthood. “These organizations are using their resources to help support candidates who will protect reproductive rights. I think that for Californians, that’s one thing we can do… We can be supportive of candidates who are like-minded, who maybe are not able to gain traction, because of the financial barriers to getting the word out in their community… so kind of bringing in more resources can help in that way,” said Crispin-Peralta.
Reevaluating the powers of the court is also a consideration when determining how certain rights have become so contested, said Atkinson and Crispin-Peralta.
“That’s not the role the court’s supposed to be. There’s that vision of that’s what it’s supposed to be, and you ask yourself, well okay, if it scales down in terms of what it does… what happens if you get rid of it? All of a sudden the prospect for having prospects against discrimination, the prospect for having protections, you can have them on the law books, but it’s a matter of who’s enforcing the law, especially the ability for the federal government to enforce that law in places where the local sand state agendas wouldn’t be interested in doing it,” said Atkinson.
Atkinson said an uncomfortable aspect about the current political state is that the court controls a vast majority of important political and policy decisions, and the court is given the power to veto anything based upon what is often “tenuous logic,” and ideology, which does not align with the intention of the court.
“The court was envisioned as an institution that could protect the rights of people who weren’t in the political majority. And that’s the motivation for having the court. And, and that’s a very good motivation. But the court’s gotten well beyond doing that. And we have so many important issues, whether it’s how we can protect the environment, or, you know, the division of power between the state and federal government or reproductive rights, all of these things where you rightly say elections turn on the court. They were put there by people who were elected decades ago, and are making these decisions. I mean, there’s no other country in the world that works that way. Some countries have stronger or weaker judiciaries, but there’s nothing where there’s a ‘serve for life.’ And the rationale is that judges should be selected effectively enough that they wouldn’t want to be making undemocratic decisions, right? I think we need a dramatic rethinking of the role of the court in the American political system, and I don’t see how that happens,” said Atkinson.
Atkinson said that in the 1970s, more Democrats in Congress opposed abortion than Republicans, however anti-abortion peple have since organized within the Republican Party, making them defined by that issue and transforming the ideology.
Crispin-Peralta said, “When we look at the long arc of history and we look at things like women’s rights or things like racial justice, we see movements forward, and the retraction, the pullback. But the next movement forward is always further.”
The confirmation hearing for Judge Barrett is set to begin on Oct. 12, while the Senate is on recess until Oct. 19 due to the COVID-19 outbreak tracing back to Barrett’s nomination ceremony on Sept. 26. The Judiciary Committee is set to vote on Oct. 22.