What If We Had Just Listened to Ruth Bader Ginsburg?

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What If We Had Just Listened to Ruth Bader Ginsburg?

Imani Gandy

Over the last decade, Ruth Bader Ginsburg had warned us of the erosion of reproductive rights and voting rights.

For more on Ruth Bader Ginsburg, check out our special report.

This week marks the six-month anniversary of Ruth Bader Ginsburg’s death, and when I think back to September and the events that followed, it all seems so surreal. From Senate Republicans ramming Amy Coney Barrett through the confirmation process practically before Ginsburg’s last breath had left her body, to the election and post-election tantrum that Trump (remember that guy?) and his supporters threw that culminated in a literal attempt to overthrow the government, it’s like Ginsburg died and then the shit hit the fan in protest.

Ginsburg was obviously a powerhouse when it came to gender equality. (And I wrote as much when she died.) But so much of what has happened since her death is a direct consequence of things she warned us about. I decided to take it upon myself to mark the occasion by saying “I told you so,” on her behalf.

Because when it comes to voting rights and the right to contraception and abortion, she did tell us. In her dissent in Hobby Lobby v. Burwell, she foretold a future in which some people’s religious beliefs would be prioritized over the rights of other people to not have those religious beliefs interfere with their lives. And then right before she died, she told us in her dissent in Little Sisters of the Poor v. Pennsylvania that the future she foretold had arrived.

She told us in Shelby v. Holder that gutting the Voting Rights Act of 1965, which had successfully reduced voter suppression in states with a history of disenfranchising Black voters, would be like tossing away your umbrella because it’s no longer raining. Well look around: There’s no umbrella, and Black voters are soaked.

She told us in Whole Woman’s Health v. Hellerstedt that anti-choice lawmakers claiming they are passing abortion bills to “protect women” were full of crap. And given that lawmakers are now outright calling for the deaths of people who get abortions, it’s obvious that she was correct.

She told us. She was right. If only we had listened.

So I’m going to gifsplain just how right she was, and because I think RBG would 100 percent have approved of this sort of whimsical undertaking, I’m going to do it using Schitt’s Creek GIFs.

On birth control

When it came to the birth control wars, Ginsburg was downright prescient—but to understand how, we have to revisit how the birth control wars started in the first place.

The year was 2011. President Obama had signed the Affordable Care Act into law, and the Department of Health and Human Services had this nifty idea about improving women’s health care by making coverage widely accessible and paying for it.

After some studies were conducted, HHS released guidelines intended to improve women’s health care while reducing its cost. The guidelines required all new private insurance plans to cover preventive services like breast exams and Pap smears, maternity care, HPV testing, gestational diabetes screening, and breastfeeding support without co-pay.

The guidelines also mandated coverage of contraceptives. If you are a private employer offering health insurance to your employees, that insurance needs to cover birth control. If you’re a school offering health insurance to your students, that insurance needs to cover birth control. But if you are a church or a religious organization, your insurance doesn’t have to cover birth control; and if you’re a group of nuns, you should probably sit down and stop complaining because literally no one is forcing you to provide birth control to anyone.

This mandate sparked off a war about birth control—who has to pay for it? Is it evil? Are they slut pills? Does it kill babies?—that continues to this day.

The opening salvo of the birth control wars came to a head in June of 2014, when the Supreme Court issued its ruling in Hobby Lobby v. Burwell.

You remember Hobby Lobby, don’t you? The yarn store that thought it was a real boy and sued for the right to shove its religious beliefs down the throats of all its employees, whether they were Christian or not?

In Hobby Lobby, the Supreme Court essentially said, “Sure thing, Hobby Lobby. You’re people. You have religious beliefs. Go ahead and shove your Christian beliefs down your employees’ throats, even if your employees are Jewish, Muslim, or pastafarians.” Does that make sense to you?

Sensible or not, the Court ruled for the first time ever that certain for-profit corporations had the right to religious freedom and were entitled to exercise their religious freedom by refusing to provide birth control coverage to their employees. It was a terrible decision marred by absurd logic, and Ginsburg knew the effect the decision would have. Her dissent warned us of a worrying future in which some people’s religious rights were prioritized over the religious rights of other people.

And in Little Sisters of the Poor v. Pennsylvania, her final dissent before she died, Ginsburg confirmed that the future she warned about was here:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

And that’s the reality in 2021. The day after the election, the Court heard oral arguments in Fulton v. City of Philadelphia, a case that will determine whether religious foster care agencies can refuse to place children with LGBTQ families or families that are not Christian—and there’s a solid chance that the 6-3 Amy Coney Barrett Court will answer that question in the affirmative.

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On abortion

When it came to Texas’ clinic shutdown law HB 2, Ginsburg needed less than 400 words to tell Texas to stick it where the sun doesn’t shine.

Her opinion in Whole Woman’s Health v. Hellerstedt was short and to the point: Texas’s claims that it enacted the law that shut down most of the state’s clinics out of concern for patient health and safety were nonsense, she said. There are far more dangerous procedures that Texas had not subjected to similar regulations. And besides, she said, desperate patients would turn to rogue abortion providers, which poses a greater risk to their health and safety.

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

“Faute de mieux” means “for lack of an alternative.” (I looked it up.)

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Ultimately, Ginsburg said, these laws couldn’t survive judicial review:

So long as this Court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, 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.

Damn straight. And given that a lawmaker in Texas just introduced a bill that would put people who get abortions to death, it seems pretty clear that anti-choice lawmakers in Texas don’t care about patient health and safety.

On voting rights

And then there’s Shelby v. Holder. If there’s one case that Ginsburg deserves to be smug about as she chills in heaven playing Animal Crossing with Kenny Rogers, it’s Shelby. That’s the case where John Roberts announced that racism was over and that there was no reason for states with a history of keeping Black and brown people from voting to continue getting preclearance (i.e., authorization) from the Department of Justice before passing a bunch of laws that keep Black and brown people from voting.

Roberts was immediately proven wrong when states rushed to pass voter suppression laws—literally on the day the Shelby decision was announced.

Cut to eight years later, and Republicans are so verklempt over the prospect of permitting everyone in the country to vote without obstruction that Sen. Mike Lee (Snowflake-Utah) called HR 1—Democrats’ efforts to expand voting—“written in hell by the devil himself.”

(Lee, like so many Republicans, knows that the only path to victory for the GOP is littered with voter suppression tactics and gerrymandering.)

Ginsburg knew that the Court had gotten it wrong in Shelby. The fact that there were few incidents of voter suppression was precisely because the preclearance scheme of the Voting Rights Act was working. Ginsburg knew that absent accountability to the DOJ, states would begin to target Black voting rights with surgical precision. In her words:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Well, the Court threw away the country’s umbrella, and now Black and brown voters are getting wet. Surprise!

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Over the last decade, Ginsburg warned of the erosion of reproductive rights and voting rights. As a religious minority herself—the first Jewish woman on the bench—she understood how religious majorities can run roughshod over religious minorities. She cautioned against opening that barn door. But she was ignored.

Now that barn door is wide open, and the horses are invading abortion clinics and trying to overthrow the government.

Heaven help us.