Women after Scalia
I got the news of the discovery of an elderly man found dead of natural causes in his room at a remote ranch in Texas the way so many of us do nowadays: from a news app on my smartphone. It happened to be while I was walking with my husband on a white sand beach on the Gulf of Mexico.
News that could change the course of gender justice for American women for years to come.
Supreme Court (SCOTUS) Justice Antonin Scalia’s sudden death at 79 years old has heated up an already volatile presidential campaign when, only hours after the announcement of his passing, Senate leaders and the candidates from one party declared their intention to block any attempt to allow President Obama—as is his constitutional duty—to nominate and have hearings held to vote on his choice to fill this vacancy.
Candidates—and voters—on either side of the conservative/progressive divide realize that the makeup of the court, beginning with filling this position, cannot be underestimated in terms of the power this body holds over our day to day lives and the future of our nation. (And the global community, as their most recent vote to block implementation of our participation in climate accords.)
Until such time as this happens, an eight member, deeply divided Court may well issue split 4-4 decisions which will have a great impact, in the case of women’s reproductive rights, either for good or ill. And if (or rather when) the nomination process goes forward, the choice of replacement for Justice Scalia may change the tenor and majority rulings of SCOTUS in critical ways.
Katha Pollitt, feminist essayist and columnist for The Nation, has written a piece titled “America Changed. Antonin Scalia Never Did.” She noted that his vote was part of a 5-4 majority in opinions directly impacting women: gutting the Violence Against Women Act and the Hobby Lobby case, which favored the so called religious freedom rights of closely held corporations over their female employees in the mandate to offer contraceptive coverage under the Affordable Care Act.
And if he had his way, she believes it might well have been much worse.
“In his world,” she writes, “women would be barred from the Virginia Military Institute, Roe v Wade would long be overturned… The list goes on and on.”
On women’s rights, Pollitt says, we have moved far away from the world view and legal opinions of this conservative Catholic. While his positions may have been more in sync with social mores of Reagan-era America when he was appointed in 1986, they were dissonant by the time he died.
In the area of abortion rights, he continued to have some popular backing, Pollitt tells us: late trimester abortion and so called partial birth abortions for example. But in terms of the case that he would have been ruling on during this session of SCOTUS—Whole Women’s Health v Hellerstedt, the case involving a new law in Texas imposing onerous restrictions on clinics providing pregnancy terminations—when polled large majorities of voters don’t approve. They understand that the desired legislative outcome was not to make abortions safer, but to shut down the providers of this procedure.
There is no way of absolutely predicting what may have been the decision if Scalia had not died and left a vacancy. It may have been that Justice Anthony Kennedy, who has been a swing vote on some of these cases, would have voted with a 5-4 majority to disagree with the district federal court decision and to overturn this law, as well as similar laws passed in Louisiana and Mississippi.
If the position remains unfilled prior to the hearing and a tie vote results, the original lower court ruling would prevail, but would not apply to future state laws in other jurisdictions imposing the same or similar regulations unless and until another case is presented to SCOTUS.
Or the court could decide to rehear the case completely once a new justice is appointed, delaying any decision, which leaves wide open any speculation on what might happen, as it is so dependent on who the replacement might be—and who appoints her or him.
The second case those of us who focus on reproductive rights are closely following this session is the second case to be heard by SCOTUS on the Affordable Care Act mandate for employers to provide birth control coverage to women workers, Zubik v Burwell. In this case, the lower courts have been divided. If there is a 4-4 Supreme Court tie, there will be no decision.
In other words, if this vacancy remains unfilled for any length of time, decisions may well be stalled or muddied.
This week the UU Women’s Federation signed on to an interfaith letter to the U.S. Senate, originated by the National Council of Jewish Women and joined by other members of the Religious Coalition for Reproductive Choice. In it, we urged the President and Senate to fulfill their constitutional duties to fill the vacancy in order to see a civil, fair, and expeditious process.
“As people of faith, we are inspired and informed by the pursuit of justice…” our letter maintains. “If we fail to expeditiously advance the filling of the current vacancy, we abdicate our responsibility to justly serve the dignity of all.”