Ruth Bader Ginsberg Just Sized Up Mike Pence for Exactly What He Is
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They're a bunch of scamps, those Nine Wise Souls on the high bench in Washington, D.C. They seem to delight in bringing their most fervent fans right up to the inner suburbs of Nirvana and stranding them there, at least for the moment. On Tuesday, the Supreme Court decided two cases that were guaranteed examples of wingnut interruptus. In one of them, the Court let stand a lower court ruling that upheld a Pennsylvania school district's policy of allowing transgender students to use the restrooms that conform to their gender identity. The Court took this action without comment.
But it was the other decision-on an own-the-Libs abortion law signed by our very own vice president, Mike Pence, when he was governor of Indiana-that left matters in something of a muddle. Box v. Planned Parenthood made the new Court's majority's opinion on these issues even murkier.
In 2016, when his time as governor was running out, and when his supporters were running for the exits, Pence signed a law that forbade abortion if the woman's doctor knows that she is having the abortion because of the fetus's gender, and that required that fetal remains be disposed of separate from other surgical byproducts. As should be obvious, this was Pence's way of shaming women out of their reproductive rights. How, for example, absent the woman's stating it flatly, was a doctor supposed to divine the reasons why the woman was having the procedure-which, in any case, she doesn't have to justify to anyone anyway, and especially not to a Bible-banging yahoo like Mike Pence.
This apparently occurred to the justices, too, because they split the difference, upholding the second part of the law, deciding that the disposal requirement did not violate an undue burden on the woman having the abortion, the test that became paramount in the 1992 decision in Planned Parenthood v. Casey. However, it refused to hear a challenge to a lower court's decision that struck down the ban on "selective" abortion. This effectively throws out the ban entirely.
So, where are they, really? It was expected that the elevation of Justice Brett Kavanaugh not only would make PJ and Squi proud, but that it also would result in a Court majority's hastening, at the very least, to restrict the rights established in Roe v. Wade into oblivion, if it did not hasten to overturn it entirely. Instead, this particular decision shows either a reluctance on the part of the Court to engage fully with the question of overturning Roe, or a desire among some of the justices to give that particular issue a good leaving alone. However, as Jeffrey Toobin pointed out on CNN, neither of those stances may be able to withstand the flood of anti-choice laws coming out of the states.
In any event, the day's entertainment could be found in the two written decisions that accompanied the Indiana case. Justice Clarence Thomas went rather bananas, and Justice Ruth Bader Ginsberg called him out. Echoing every uncle who watches Fox News and has internet access, Thomas used his dissent-he wanted the whole law upheld-to rant and rave against not only abortion, but birth control, tying another ill-tempered can to the tail of Margaret Sanger's reputation. Sanger, of course, has been dead since 1966.
Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control “opens the way to the eugenist.” As a means of reducing the “ever increasing, unceasingly spawning class of human beings who never should have been born at all,” Sanger argued that “Birth Control . . . is really the greatest and most truly eugenic method” of “human generation.” In her view, birth control had been “accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health.”
But the real action was in the footnotes, where Thomas took a whack at Ginsberg, who wanted the entire Indiana law overturned. Thomas, first:
Justice Ginsberg does not even attempt to argue that the decision below was correct. Instead, she adopts Chief Judge Wood’s alternative suggestion that regulating the disposition of an aborted child’s body might impose an ‘undue burden’ on the mother’s right to abort that (already aborted) child. This argument is difficult to understand, to say the least, which may explain why even respondent Planned Parenthood did not make it.
To which Ginsburg replied:
“A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.' The cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden … under the rational-basis standard applied below, (and) Planned Parenthood of Indiana and Kentucky had no need to marshal evidence that Indiana’s law posed an undue burden."
In this, Ginsburg is calling the bluff not only of Thomas, but of Mike Pence as well. She sees the law for what it was-a mechanism for making a perfectly legal exercise of a fundamental right as inconvenient and painful as possible. She has sized Pence up for what he is, and this law for what it was meant to do. It is the one clear light in the murk of this decision.
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