In an alarming decision, the Court today reverses the judgments other federal courts have uniformly made. Today’s decision refuses to take Casey and Stenberg seriously. The Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.
The Court asserts that its ruling furthers the government’s interest in “promoting fetal life.” But the Act scarcely furthers that interest, for it targets only a method of abortion. The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her. The Court further pretends that its decision protects women. Women might come to regret their physician-counseled choice of an intact D&E and suffer from “[s]evere depression and loss of esteem,” the Court worries. Notably, the solution the Court approves is not to require doctors to inform women adequately of the different procedures they might choose, and the risks each entails. Instead, the Court shields women by denying them any choice in the matter. This way of protecting women recalls ancient notions about women’s place in society and under the Constitution—ideas that have long since been discredited.
If there is anything at all redemptive about today’s opinion, it is that the Court is not willing to foreclose entirely a challenge to the constitutionality of the Act. But the “as-applied challenge[s] in discrete case[s]” the Court would allow put women’s health in danger and place doctors in an untenable position. Even if courts were able slowly to carve out health exceptions for “discrete and well-defined instances” through hard fought, protracted piecemeal litigation, women whose circumstances have not been anticipated by prior litigation could well remain unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow, as-applied challenges are “the proper manner to protect the health of the woman.”
As the Court wrote in Casey, “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, it would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” Although today’s opinion does not go so far as to discard Roe or Casey, the Court—differently composed than it was when we last considered a restrictive abortion regulation—is hardly faithful to Casey’s invocations of “the rule of law” and the “principles of stare decisis.”
In candor, the Partial-Birth Abortion Ban Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.
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I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.
II. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013); Vance v. Ball State University, 133 S. Ct. 2434 (2013).
8
Highlights of the U.S. Supreme Court’s 2015–16 Term
The federal judicial map of the United States is divided into thirteen “circuits,” most of which are subdivided into “districts.” Each circuit is the home of a “circuit court of appeals.” (Justice Ginsburg, for example, served on the U.S. Court of Appeals for the District of Columbia Circuit from 1980 until 1993.) The circuit courts take appeals from the federal trial courts—called “district courts”—within their circuit. Above the circuit courts sits the United States Supreme Court.
In the early days of the republic, each of the Supreme Court Justices, assigned to a particular circuit, would “ride circuit,” sitting as a judge with the circuit’s judges to hear cases. Today the Justices are still assigned a circuit or two, but they almost never hear cases. Their main responsibility is to deal with applications from their assigned circuits for emergency stays (most notably, stays of execution in death penalty cases) and injunctions.
Justice Ginsburg’s assigned circuit is the Second Circuit, which includes Connecticut, New York, and Vermont. Each year she attends the annual Judicial Conference of the Second Circuit and delivers her “Highlights” reports to the attendees, in which she comments on the “most watched” cases decided by the Supreme Court for the Term, as well as notable actions in cases that came to the Court from the Second Circuit, and she leavens the report with a taste of the lighter side of life at the Court. Since these “Highlights” are usually delivered before the end of the Term, Justice Ginsburg updates them once all the decisions are “in,” usually by the end of June.
The Court’s 2015–16 Term was, as Justice Ginsburg’s Highlights below reveal, affected by the mid-Term death of Justice Scalia. One consequence was that some cases which likely would have been decided by a 5–4 vote ended up with a 4–4 tie, leaving resolution of the issues they raised for a later case and future Term. Another may have been a somewhat heavier workload for the Court’s remaining Justices. Fortunately, most of the Court’s cases are not decided by narrow majorities, and, as Justice Ginsburg’s review of the Court’s Term output and “closely watched” cases makes evident, much of the Court’s work proceeded as usual. But, she says, without the exuberant presence of Justice Scalia, the Court is “a paler place.”
The two cases at the top of Justice Ginsburg’s most-watched list for 2015–16, both from Texas, were Fisher v. University of Texas, an equal protection challenge to the university’s affirmative action admissions policy, and Whole Woman’s Health v. Hellerstedt, a due process challenge to a law imposing standards on abortion clinics and their doctors that reduced women’s access to abortions. In both of these cases, it was Justice Kennedy who called the shots. Tweaking his prior positions on affirmative action and abortion, he joined the Court’s liberal members to preserve the Court’s challenged precedents on abortion and affirmative action.
Although Justice Ginsburg did write for the majority in some of the other high-profile cases discussed in her Highlights, she wrote neither a majority nor dissenting opinion in Fisher or Whole Woman’s Health. Nonetheless, she left her mark on both. Before turning to her “rapid review” of the Court’s 2015–16 Term, a few extra paragraphs on her role in those two most-watched cases are in order.
Fisher
Three years and one day after its first ruling in Fisher v. University of Texas had sent the case back to the Court of Appeals for a second look (see p. 296), the Court, on June 23, 2016, issued its second decision in Fisher. As in Fisher I, Elena Kagan, the Court’s junior Justice, recused herself because, during her previous job as solicitor general, her office of the Justice Department submitted an amicus brief in the case. In the absence of Justice Kagan, and with the death of Justice Scalia earlier in the Term, the Court, reduced to seven Justices, was likely to split 4–3. Justice Kennedy had written the majority opinion that sent Fisher I back to the Fifth Circuit for reassessment; now the question was, which three Justices would he join to make a majority in Fisher II?
Justice Ginsburg had been the sole dissenter to Justice Kennedy’s Fisher I decision. She had written:
The University of Texas . . . seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of the University of California v. Bakke (1978). And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger (2003) [citations omitted].
“Accordingly, I would not return this case for a se
cond look,” she declared:
As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives.
The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that [the Grutter] framework warrants. Instead, . . . it remands for the Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court’s Bakke and Grutter pathmarkers, merits our approbation. [Footnotes and citations omitted.]
Although Justice Kennedy was never the adamant opponent of affirmative action that his colleagues Justices Scalia and Thomas were, in no prior case had he actually approved a race-conscious admissions program. Now, in Fisher II, he changed course, joining Justices Ginsburg, Breyer, and Sotomayor to make a 4–3 majority declaring the University of Texas’s race-conscious admissions program lawful under the Equal Protection Clause of the Constitution, and, as the senior Justice in that majority, he chose to keep the opinion-drafting task for himself.
The university, Kennedy wrote, had, after careful and thorough study, “articulated concrete and precise goals”—among them, destruction of stereotypes, promotion of cross-racial understanding, preparation of a student body for an increasingly diverse workforce and society, and the “cultivation of a set of leaders with legitimacy in the eyes of the citizenry”—all objectives that “mirror the ‘compelling interest’ this Court has approved in its prior cases.” And this time around, he was persuaded that the university had carried its burden of proving that its race-conscious program was necessary and narrowly tailored to its interest in a diverse student body.
None of the suggested alternatives to the university’s approach, he concluded, “had been shown to be ‘available’ and ‘workable’ means through which the university could have met its educational goals.” In particular, Kennedy rejected petitioner Fisher’s suggestion that the university already had at hand a race-neutral device to meet its goals: namely, an uncapped version of the university’s Top Ten Percent Plan under which it could admit all or nearly all of its students. Explaining why such a percentage scheme did not constitute a more narrowly tailored way of achieving the university’s interest in diversity, Kennedy invoked Justice Ginsburg’s dissenting words in Fisher I, writing:
As an initial matter, petitioner [Fisher] overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enrollment. Percentage plans are “adopted with racially segregated neighborhoods and schools front and center stage.” Fisher I, 570 US at ___ (Ginsburg, J., dissenting) (slip op., at p. 2). “It is race consciousness, not blindness to race that drives such plans.” Ibid. Consequently, petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy race neutral.
The university, he concluded, had “met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.” In Fisher II, Justice Kennedy had ended up where Justice Ginsburg already stood in her dissent in Fisher I.
Whole Woman’s Health
In one of the most significant abortion cases in several decades, the Court was asked to pass on the constitutionality of a Texas law that, purportedly in the name of women’s health, had reduced women’s access to pre-viability abortions in that state. The Court’s three women Justices, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, joined by Justice Stephen Breyer, made news with their vigorous, informed, and pointed questions from the bench at oral argument in early March.
Justice Ginsburg asked the first question of the lawyer for Whole Woman’s Health, Stephanie Toti. When, mid-argument, the questioning bogged down, she tried to move her fellow questioners along, but, even after a clarifying intervention by Justice Kagan, couldn’t manage to guide Justices Kennedy and Alito past threshold procedural issues before Toti reached the end of her allotted time. At that point, Justice Ginsburg intervened again, asking the Chief Justice if Toti could “have some time to address the merits”—whether the state’s legal requirements imposed an undue burden on women’s right to choose abortion. The Chief granted an extra five minutes, at the end of which Justice Sotomayor took up the questioning and didn’t let go for at least another five minutes. But it was when the lawyer for Texas, Scott Keller, stood up to defend the legislation that Justices Ginsburg, Sotomayor, and Kagan dominated the bench. Justice Ginsburg again asked the first question—and also, the argument again in overtime, the last. The Washington Post noted that Justices Ginsburg and Sotomayor had questioned the lawyers for so long that the one hour allotted for the arguments in the case went almost a half-hour overtime. Dahlia Lithwick, in a long blog for Slate titled “How Three Fierce Female Justices Took Control of the Supreme Court,” crowed: “It felt as if, for the first time in history, the gender playing field at the high court was finally leveled.” The Post quoted Justice Ginsburg’s cut-to-the-chase comment as Scott’s argument drew to a close: “What it’s about,” she had reminded Scott, “is that a woman has a fundamental right to make this [abortion] choice for herself.”
During oral argument, Justice Kennedy had seemed of two minds, on the one hand exploring at length whether there was some way to postpone or avoid a decision on the constitutional question, and on the other inquiring about the medical wisdom of one of the Texas law’s consequences, fueling considerable speculation among Court watchers about where he would come out. When the time came to decide, he cast his vote with the liberals, joining Justices Ginsburg, Kagan, Sotomayor, and Breyer to form a majority of five to invalidate the Texas law. Being the senior Justice in the majority, he got to assign the authorship of the Court’s opinion, and he chose Justice Breyer to do the job.
Reaching back to Planned Parenthood v. Casey, a case decided the year before Justice Ginsburg joined the Supreme Court, Justice Breyer clarified the “undue burden” standard for evaluating the constitutionality of abortion regulations. “We recognize,” he wrote, quoting Roe v. Wade, that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” But, he noted, citing Casey, “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right.” The Casey rule, he stated, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Applying that balancing test, Justice Breyer engaged in an intensive examination of the evidence and findings relating to the Texas law’s health benefits (negligible) and burdens on women’s access to abortion (considerable), and concluded that the Texas law failed the constitutional test.
Justice Ginsburg joined Breyer’s forty-page opinion, but, as she mentions in her Highlights, she also wrote a concurring opinion. This short concurrence, consisting of one long paragraph, amplified the Breyer opinion’s most telling facts: The Texas law “inevitably will reduce the number of clinics and doctors allowed to provide abortion services,” making abortions more difficult to obtain. Complications from abortions “are both rare and rarely dangerous”; abortion is “one of the safest medical procedures performed in the United States” and “is at least as safe as other medical proce
dures performed in outpatient settings”; and “medical procedures, including childbirth, are far more dangerous to patients.”
“Given those realities,” she wrote, “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.’ ” (Later, speaking with a reporter, she was blunt about the law’s purpose: “It seemed to me it was a sham to pretend this was about a woman’s health” rather than about making it harder to obtain an abortion.)
Then she made a point, nowhere addressed in the Breyer opinion, but embedded in the memories of women old enough to remember the days when abortion was illegal: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux,I at great risk to their health and safety.” Her conclusion: “So long as this Court adheres to Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), [laws like Texas’s] that ‘do little or nothing for health, but rather strew impediments to abortion’ . . . cannot survive judicial inspection.” Just days after the decision was announced, Justice Ginsburg told an Associated Press reporter, “I fully subscribed to everything Breyer said, but it was long, and I wanted something pithy. I wrote to say, ‘Don’t try this anymore.’ ”1
Highlights of the U.S. Supreme Court’s 2015–16 Term
July 1, 2016II
It is fitting to open these remarks with a remembrance of my dear colleague, Antonin Scalia. His death was the most momentous occurrence of the Court’s 2015–16 Term, and his absence will be felt in many Terms to follow. [Justice Ginsburg’s tribute in these remarks included memories she recounted in “Remembering Justice Scalia,” p. 38. We do not repeat those remembrances here.]
My Own Words Page 32