by Ria Tabacco Mar, ACLU Women's Rights Project Director

Ruth Bader Ginsburg recognized that dismantling patriarchy was necessary not only for women’s liberation, but for all of us to have the freedom to thrive regardless of gender. That certainty drove her strategy during the eight years she spent as director of the ACLU Women’s Rights Project, which she co-founded with Brenda Feigen in 1972.

No case better encapsulated Ginsburg’s strategy in the 1970s than that of Charles Moritz. Moritz was solely responsible for the care of his elderly mother, but he had been denied a caregiving tax deduction because he was an unmarried man. By representing him, Ginsburg was able to show male judges that sex discrimination hurt men as well as women. And, because the case originated in tax court, it allowed Ginsburg and her beloved husband Marty, a tax specialist, to collaborate on work as well as life.

The government’s defense in the case backfired spectacularly. It pointed to a hefty list of federal statutes that, like the one that disadvantaged Moritz, expressly distinguished between women and men. Ginsburg couldn’t possibly be right about the tax law, argued the government, because if she was, then hundreds if not thousands of other laws would be unconstitutional, too. Ginsburg prevailed, and the list – known as “Appendix E” – became WRP’s playbook as Ginsburg and her colleagues systematically took aim at laws that discriminated on the basis of sex.

While Ginsburg succeeded in establishing that the government could not condition benefits on sex, the private sector has been slow to catch up. In recent years, WRP has challenged employer policies premised on the generalization that women are the primary caregivers at home and has fought for men and women to be entitled equally to benefits like parental leave to care for newborn children. Men’s full participation in early days of parenting can lead to more equitable family roles over the long haul.

Ginsburg knew that, in order for women to step out of caregiving roles, men would have to step into them. That’s not to say that Ginsburg prioritized work outside the home over work within it. To the contrary, it was her fervent hope that everyone could share equally in the joys and labor of family life.

I had the opportunity to interview Justice Ginsburg in what turned out to be one of her final public appearances. Knowing that she had often been asked how she balanced her own career with parenting, I wondered whether anyone had ever asked her husband about how he achieved work-life balance. Unfortunately, Marty wasn’t there to speak for himself, having died a decade earlier. Instead, I asked Ginsburg what advice she would give to men who are working and parenting. “One of the saddest things about men’s lives is that they’re out there working,” she answered, “and one day their children are grown and they didn’t have any real part in raising them.”

I remembered Ginsburg’s remarks in that moment on Friday evening when we learned, as the sky went dark and a new year began according to the Jewish calendar, that she had died. Just as childhood is fleeting, so too she had left us too soon. We at the ACLU will use each day to carry forward her legacy.

Note: This piece was originally published in SCOTUSblog on Sept. 21, 2020

By Rachel Reeves, ACLU Staff Attorney

Six months into the COVID-19 pandemic, it is devastatingly apparent that the United States’ longstanding racial inequalities have only been amplified during this crisis. Nowhere is that truer than in health care, including reproductive health care.
 
Even before the pandemic, people of color faced severe barriers to accessing essential reproductive health care as a result of interrelated factors such as structural racism, gendered oppression, and associated economic disparities. Abortion restrictions, such as bans on insurance coverage for abortion or laws mandating delays in abortion care and an extra unnecessary trip to the clinic, have a disproportionate impact on women of color. And Black women are still over three times more likely to die from pregnancy or childbirth than white women. These inequalities, historically rooted in white supremacy, have deadly consequences.  
 
During a global pandemic that is disproportionately killing people of color, restrictions on reproductive health care — like the FDA’s requirement that patients seeking medication abortion care travel in person to a health center for the sole purpose of picking up a pill and signing a form — hold even graver consequences for these communities.
 
In May, we sued over this very requirement on behalf of a coalition of medical experts and reproductive justice advocates, arguing that it is an unconstitutional restriction on abortion access and places people, particularly people of color, at serious risk during the pandemic by requiring medically unnecessary travel and in-person interactions that needlessly increase exposure risks.
 
In a tremendous victory for people who need abortion care, we won: A federal district court ruled that the FDA must suspend enforcement of this requirement for the duration of the public health emergency. But the Trump administration is not giving up the fight; undeterred by their failed attempts to defend this restriction in the lower courts, they have now taken the extraordinary step of asking the Supreme Court to step in.
 
There’s no question that the FDA’s policy — and the Trump administration’s insistence on reinstating it — is a direct attack on the health and safety of people of color. Sixty percent of people who receive abortion care are people of color, including 53 percent who identify as Black or Latinx. As has been well documented, people of color are suffering higher rates of severe illness and death from COVID-19 than white people, both because they experience higher rates of preexisting medical conditions that increase the severity of COVID-19, and because they are less likely to have access to quality care. As a result, the FDA’s requirement is particularly dangerous for people of color. And the nature of COVID-19 spread means that these hazards affect not only the individuals seeking care, but also their families and communities.
 
The Trump administration is well aware of the requirement’s disproportionate effect on communities of color. In fact, the court’s decision specifically found that “abortion patients face particular challenges in traveling … for in-person appointments during the pandemic, many of which arise because 60 percent of women obtaining abortion care are people of color and 75 percent are poor or low-income … By causing certain patients to decide between forgoing or substantially delaying abortion care, or risking exposure to COVID-19 for themselves, their children, and family members, the … requirement presents a serious burden.”
 
Should the Supreme Court grant the Trump administration’s request to reinstate the FDA’s rule, patients of color will again be forced to run a gauntlet of needless COVID-19 exposure risks — sharing a bus or train with others; dropping their children off for childcare — as the price of obtaining essential health care.
 
In our lawsuit, health care providers across the country shared stories about how the FDA requirement has harmed their patients during the pandemic.
 
The chair of the OB-GYN department at the University of New Mexico School of Medicine described the pandemic’s destructive impact on Native Americans in her state, who comprise roughly 11 percent of New Mexico’s population but represented half of all COVID-19 deaths by mid-May. She recounted a story of a Native patient who had to drive several hours from the patient’s community to her practice simply to comply with the FDA’s requirement. In the midst of a pandemic devastating Native communities, this patient was forced to risk COVID-19 exposure for herself, her community, and health center staff instead of safely receiving her prescription by mail.
 
When the pandemic forced medical offices to close, another doctor in New York City, who provides care through a community-based family health center, had to entirely cease providing abortion care to her patients, almost all of whom are people of color. She was able to provide other care through telemedicine but, because of the FDA’s in-person pill pick-up requirement, had to deny care to patients seeking medication abortion simply because she did not have access to a physical office where the patient could be handed the medication.
 
This is the message we hear from reproductive justice organizations, like our client SisterSong Women of Color Reproductive Justice Collective: Just as the harms of severe illness due to the COVID-19 pandemic are not shared equally, neither are the burdens of the FDA’s restrictions on medication abortion care.
 
The FDA’s restriction creates indefensible barriers to accessing abortion care with potential life or death consequences, particularly for people of color. We’re doing everything we can to stop that.

by Andrea Woods, ACLU Staff Attorney

I am tired of members of my profession dismissing my clients’ humanity. Sadly, it happens a lot:

“Your clients are probably lying to you, which is unsurprising,” reads an email from a representative of the Texas State government.

“People get better medical care in jail,” claim people who have never been incarcerated a day in their lives as reason to keep people locked up during this pandemic.

“We can’t trust inmates to follow the law, so how could we trust them to quarantine from others if they were released?” asks a judge who swore an oath to protect the fundamental rights of these “inmates.”

It should not be news to anyone that the scales of justice are tipped in favor of the powerful, but it’s never been starker to me than now. I’ve spent the last six months on the frontlines of the legal battle to protect incarcerated people from preventable illness and death as jails and prisons fumbled their response to the COVID-19 crisis. What I’ve seen is a chasm between the courage and humanity of my clients — people discarded in crowded facilities trying against all odds to follow public health guidelines — and the officials who incarcerate them: bureaucrats ever ready to point the finger elsewhere as they deny incarcerated people adequate food, water, PPE, cleaning supplies, testin, the ability to socially distance, and subject COVID-positive patients to pepper spray.

More than 1,000 incarcerated people have died from confirmed cases of COVID-19, and 88 of the top 100 largest outbreaks in the country are in jails and prisons. Even this paints an incomplete picture: Around the country, we’re seeing facilities refuse to provide COVID-19 testing to incarcerated people to keep reported numbers artificially low. In Arizona, officials reportedly went so far as to order incarcerated people to refuse COVID-19 tests or else face a “beat-down.” Other jurisdictions, including in Texas and California, simply ignore COVID-19 case counts in prisons in order to increase their chances of reopening.

And when we sue to hold these legal system actors accountable, it increasingly becomes obvious: They are lying to maintain the status quo, despite the risk it poses to our clients.

The philosophy behind our legal system is that adversaries — usually lawyers — present evidence to a judge or jury, engage in vigorous advocacy, and the truth should win out. Even in ordinary times, this is a myth for most people accused of crimes: Public defenders are given vastly fewer resources than law enforcement and prosecutors, and the overwhelming majority of criminal cases are resolved by plea bargaining instead of trial (often to avoid the additional prison time that comes with exercising trial rights). When people do demand their day in court, decades of “tough on crime” rhetoric have manifested in juries and judges who view arrested people — particularly Black and Brown people — as presumptively guilty instead of innocent.

Unfortunately, in the COVID-19 context, judges continue to favor the demonstrably untrue accounts of jail officials over those of incarcerated people who testify at great personal risk. For example, in Memphis, Tennessee, the chief jailer testified under oath that the jail was following a policy of not returning a COVID-positive person to the general population until they had twice tested negative for COVID-19. He even said that failure to do so would create a high risk of transmission. However, his staff and colleagues had never implemented this testing policy and routinely moved COVID patients back into the general population without testing. 

Government officials routinely employ this strategy of plausible deniability: Supervisors who brush aside evidence of daily practices testify that all is well, while the reality is bleak for incarcerated people, as well as prison and jail staff. The temerity knows virtually no bounds: As incarcerated people suffer severe illness and die, jurisdictions like Miami and Orange County filed legal appeals to save themselves from the grave injury of having to provide detainees with soap.

Yet, the officials who I feel the most betrayed by this year are our federal judges. Federal judges are uniquely entrusted to protect the constitutional rights of all. Their lifetime appointments are meant to ensure their total independence and ability to fairly protect the rights of even those without political or social influence. The federal judiciary — at least in principle — is our government’s best hope to protect the rights of the systemically oppressed.

Many recent legal rulings on important matters of public health have fallen short. Many trial courts have cherry-picked evidence or misapplied the law to rule against incarcerated people. And when trial courts find that our clients’ rights were violated, courts of appeals ignore the record and go out of their way to reverse course — most notably when the Supreme Court recently paused a court order requiring increased protections in the Orange County Jail without offering any explanation, and despite rising COVID infections and dishonesty by jail officials (called out as “bad behavior” by Justice Sotomayor in her dissent).

While profoundly disappointing, these pro-incarceration instincts track the composition of the federal bench. Seven times more federal judges are former governments lawyers (prosecutors and civil attorneys) than lawyers who brought challenges to government action; 80 percent of federal judges are white — despite the vast racial disparities the criminal legal system perpetuates — and 73 percent are men, despite the fact that women have been the fastest growing population in prisons and jails for decades. Judicial nominees from presidents of both parties have overwhelmingly been former prosecutors and corporate attorneys: 85 percent of President Obama’s nominees had one of those backgrounds.

Representation and fair adjudication of cases have always mattered. This year, a lack of judges who understand the true horrors of our incarceration machine meant that incarceration has been a death sentence for far too many people. The United States’ unique obsession with mass incarceration also means that the pandemic is harder to mitigate here than in other countries without these super-spreader sites.

The next President has a moral and institutional obligation to appoint judges who will counterbalance this bias against people who have been accused or convicted of crimes by appointing judges who are civil rights advocates and criminal defense attorneys, not just private corporate attorneys and prosecutors. Given how overwhelmingly lopsided our current judiciary is, the next President should aggressively appoint judges with underrepresented backgrounds to help restore our judiciary’s independence and our national trust in our courts.

I am tired of the disdain members of my own profession exhibit toward my clients. However, some of this comes with the territory of combatting our national obsession with incarceration. What should not be expected, or tolerated, is the absence of a fair and impartial judiciary who will tip the scales of justice back into balance.