Did Ruth Bader Ginsburg Just Disqualify Herself from Hearing the Texas Abortion Clinic Case?


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The latest issue of The New Republic features a long, fascinating interview with Supreme Court Justice Ruth Bader Ginsburg. Among other things, the octogenarian justice denounces the various liberal pundits who keep calling on her to retire, attacks Citizens United as the "one [current] decision I would overrule," and even gets a nice little jab in at her former colleague John Paul Stevens ("He was always fair in assigning dissents: He kept most of them himself"). But the most interesting part of the interview occurs when the talk turns to abortion. Here's the relevant exchange with interviewer Jeffrey Rosen:

JR: And if Roe [v. Wade] were overturned, how bad would the consequences be?

RBG: It would be bad for non-affluent women. If we imagine the worst-case scenario, with Roe v. Wade overruled, there would remain many states that would not go back to the way it once was. What that means is any woman who has the wherewithal to travel, to take a plane, to take a train to a state that provides access to abortion, that woman will never have a problem. It doesn't matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can't pay are the only women who would be affected.

JR: So how can advocates make sure that poor women's access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business.

The Texas legislation to which Ginsburg refers is a 2013 statute known as H.B. 2. That law placed various restrictions on abortion access throughout the state, including requiring all physicians who perform or induce abortions to have admitting privileges at a hospital no more than 30 miles away from the clinic where the abortion occurs. According to Planned Parenthood of Greater Texas Surgical Health Services, which filed suit against the law, H.B. 2 serves no legitimate health or safety rationale and is instead just a shadowy way for the state to harass and eliminate abortion providers. In March 2014, the U.S. Court of Appeals for the 5th Circuit took the opposite view, upholding the provision as a constitutionally permissible health regulation.

So what's the big deal with Ginsburg's comment? As law professor Josh Blackman observes, "What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other…. It seems that Justice Ginsburg has made up her mind about this law. It is not a health measure, but a law to put clinics out of business."

To say the least, sitting judges are supposed to refrain from stating how they will vote on a specific case that is likely to come before them in the near future. If this dispute does finally reach SCOTUS, don't be surprised when the state of Texas demands Ginsburg's recusal.