More than a month since Supreme Court Justice Ruth Bader Ginsberg’s passing, we’ve had time to reflect on our country’s great loss, her legacy, and the impact her work has had on our lives.
There are many important cases that Justice Ginsberg participated in throughout her career that created new links and strengthened bonds in the legal framework of women’s rights, as well as immigrant, disability and LGBTQ rights.
Because of the work of Justice Ginsberg, many people have been able to enjoy greater equality under the law and more protections from discrimination.
Here’s a short list of some of Justice Ginsberg’s most impactful work.
1. Stenberg v. Carhart, (2000): In this decision, the Supreme Court struck down a Nebraska law banning all intact dilation and extraction abortions. This is the commonly used method for abortions performed after the first trimester, as well as for miscarriages. This law was shown to be written and intended without regard for the health of the pregnant person, and yet Nebraska physicians who performed the procedure were subject to having their medical licenses revoked.
The Court found the Nebraska law violated the Due Process Clause of the United States Constitution, as interpreted in Planned Parenthood v. Casey and Roe v. Wade, which said that any law that imposed an “undue burden” on a woman's right to determine her own health care (including abortion) was unconstitutional.
In Planned Parenthood v. Casey, (1992) the Supreme Court upheld the 1973 Roe v. Wade decision and added to it the “undue burden” standard for abortion restrictions.
The Court also found issue with the fact that the Nebraska law offered no provision for abortion to be medically necessary – even in cases such as ectopic pregnancy in which the life of the pregnant person is threatened.
Justice Ginsberg wrote, "A state regulation that 'has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, violates the Constitution.”
In Whole Woman's Health v. Hellerstedt (2016), a Texas law was struck down 5-3, as it was proven to place “undue burden” on patients. Texas passed H.B. 2 in 2013, which severely restricted the ability of health care facilities to provide abortion, one of the requirements being that providers must have had admitting privileges with a hospital within 30 miles of the clinic.
Justice Ginsberg did not write the official majority opinion for this case, as that was Justice Stephen G. Breyer, but she did share her own thoughts in a concurring opinion. In it, she wrote, “So long as this Court adheres to Roe v. Wade... Targeted Regulation of Abortion Providers laws like H.B. 2 that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”
Today’s take: Now more than ever, we can see how important Roe v. Wade has been in not only legalizing abortion across all 50 states, but in defending attacks on abortion access.
2. Obergefell v. Hodges, (2015): Five years ago, the Supreme Court ruled 5-4 to legalize same-sex marriage.
While conservative justices John Roberts and Anthony Kennedy opined that legalizing same-sex marriage might degrade the value of heterosexual marriage and erode “traditional values,” Ruth Bader Ginsburg cited the court’s previous decision on Kirchberg v. Feenstra (1981). In that case, the court ruled unconstitutional the Louisiana Head and Master law. The Head and Master law gave a husband sole control over martial property, and, in this case, the right to mortgage their home without his wife’s knowledge or consent.
“Marriage was the relationship of a dominant male to a subordinate female,” Justice Ginsberg said. “That ended as a result of this court’s decision when the Head and Master law was struck down.”
She also made compelling arguments against Kennedy and Roberts’ statements regarding marriage requiring procreation, by asking if a 70-year-old heterosexual couple should be allowed to marry if they cannot procreate.
The Court majority held that state same-sex marriage bans are a violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Today’s take: The impact of this decision is being lived by tens of thousands across the nation as they have been able to build and grow their partnerships and families with the legal benefits of marriage. Since same-sex marriage has been legalized, over 70,000 couples in the United States have wed.
3. United States v. Virginia, (1996): In this case, the Supreme Court struck down the male-only admission policy of the Virginia Military Institute.
Ruth Bader Ginsburg wrote for the majority that the admissions policy violated the Fourteenth Amendment, as the VMI failed to show “exceedingly persuasive justification” for its sex-based admissions policy.
With the VMI decision, the high court effectively struck down any law which, as Justice Ginsburg wrote, "denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society."
The Supreme Court’s decision made it clear that gender equality is a constitutional right. Justice Ginsberg wrote: “Generalizations about ‘the way women are,’ estimates as to what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
Today’s take: Discrimination on the basis of sex has no place in public institutions, whether they be governmental, educational or even military. This landmark decision put a considerable rift in the web of institutionalized sexism. While many barriers still remain, women who choose a military education are no longer restricted from the most highly prestigious institutions in the country.
4. Olmstead v. L.C. (1999) was a landmark case for disability justice, focusing on the right of people with mental disabilities to live in their own communities.
The case focused on two women who were voluntarily admitted to a psychiatric unit of a state-run Georgia hospital, but were then held there, involuntarily and in isolation, for years.
The case not only set a groundbreaking precedent that counts mental illness as a disability, it also powerfully enforced Title II of the American with Disabilities Act, called the "integration mandate,” which states that people with disabilities have the right to access and participate in public life.
The court ruled 6-3 that the Georgia hospital was in violation of the ADA. Ginsburg wrote the hospital’s treatment of the two women “perpetuates assumptions that persons so isolated are incapable or unworthy of participating in community life.”
Today’s take: Over the Halloween season, it's common to hear insensitive jokes about padded cells and straightjackets, and songs with lyrics like “They’re coming to take me away, ha-ha" as part of the seasonal theme of horror. These draw from a past of real horror for people with disabilities, when prolonged isolation and nonconsensual medical procedures were commonplace, and mental illness and disability were highly stigmatized. Ruth Bader Ginsberg stood up for the rights of disabled women, and the landmark decision set a precedent for all disabled people.
5. Craig vs. Boren (1976) is a case that Ruth Bader Ginsberg participated in not as a Supreme Court Justice, but as Women’s Rights Counsel attorney for the ACLU. In this case, Ginsberg showed up to represent one of the key tenets of feminism – equality for all, regardless of gendered expectations based upon sex assigned at birth – in a way that many found surprising.
The case involved an Oklahoma law that involved disparities in the legal age to purchase beer based on sex; Women could legally buy beer at age 18, but men must wait until age 21. The state’s rationale was that women are more “virtuous” than men and could be better trusted not to drink to excess.
Justice Ginsberg argued that the law’s rationale was unconstitutional on the grounds that it clearly discriminates on the basis of sex. Thus, it violated the 14th Amendment. The Supreme Court agreed and ruled that the Oklahoma statute was unconstitutional, setting a precedent that all statutory or administrative sex classifications were subject to scrutiny under the 14th Amendment.
Many found it odd that a feminist was defending the rights of men in this case, but now with the hindsight of Justice Ginsberg’s record as a Supreme Court Justice, it’s easy to see that Justice Ginsberg was simply against injustice of any sort.
Today’s take: The idea that men are intrinsically less “virtuous” than women has dangerous and devastating individual and social consequences, contributing to the devaluation of women’s labor and personhood, as well as rape culture and toxic masculinity. Justice Ginsberg was right to argue this case as she did, and she laid the important groundwork to help eliminate institutionalized sex discrimination.