Bonus Pod: Remembering the Notorious RBG and Looking Ahead to What’s At Stake

On September 18, Justice Ruth Bader Ginsburg passed away from complications related to pancreatic cancer. Ruth Bader Ginsburg was a fierce defender of justice for all. Leila Abolfazli, Director of Federal Reproductive Rights at the National Women’s Law Center sits down to talk to us about Justice Ruth Bader Ginsburg’s legacy and what’s at stake when it comes to our sexual and reproductive health and rights. 

Before Ruth Bader Ginsburg was a Supreme Court justice, she had a historical career as a litigator. Her legal theories that she presented in court were novel for the time period, including the theory of discrimination on the basis of sex. She highlighted the ways in which unequal gender norms ultimately harm both women and men. Students of Ruth Bader Ginsburg remember that she and her husband Marty outwardly lived a life of equality-- even in the 1970s. While on the Supreme Court, Justice Ginsburg wrote a number of opinions and became notorious for her dissents, in particular. Some of the those dissents impact our sexual and reproductive health and rights to this day, including the Religious Freedom Restoration Act (RFRA), attacks against the Affordable Care Act’s Birth Control Benefit, and more.

After the passing of Justice Ginsburg, the U.S. hangs at a precarious point when it comes to equality and reproductive health and rights. On a 6-3 court where three of the justices have been appointed by an administration that is constantly working to roll back progress for marginalized communities, things don’t look good. It is important to do what Ruth Bader Ginsburg did during her time as a professor, litigator, and Supreme Court justice—dream of a better world and continue to work towards a better future.

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Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Welcome to this week's episode of RePROs Fight Back. I'm your host, Jennie Wetter, and my preferred pronouns are she/her. So now that we've had a little bit of time to sit with the heartbreaking loss of Justice Ginsburg, I thought it was really important that we do a special bonus episode where we look at her legacy. So much of the conversation has been focused on what's at stake. And while we do talk about that as well, I wanted to make sure that we were also talking about what she accomplished. So I'm really excited to share that. And if people want to learn more, a couple of years ago, I read the Notorious RBG: the Life and Times of Ruth Bader Ginsburg. It was a really great book to get to learn more about her and her life. And it was a really great read. So I recommend it. I'm also looking forward to reading sometimes soon, my own words by Ruth Bader Ginsburg that came out, I think in 2016 or 2017 or something like that. And it seems like a great opportunity to learn more about her in her own words. So I thought before we jump into the bonus episode, I was looking at our calendar and trying to plan out the year ahead per what episodes I wanted to do coming up. And I quickly realized that we have an episode that comes out on election day and I'm sure everybody is going to be very stressed. And so probably don't want a super serious episode that day. So I was trying to think of what we could do that day. I have a couple of ideas, but I'm always open to suggestions if people have a different idea of something they would like to see us do. So, one is the last couple of years, we've done an episode where I have various repro advocates tell their origin stories. So I talked about how I got into working in this field and I have a bunch of other people tell their stories. I think they're really fun. And I was thinking that we would do a round three. So that's one option. Another option I was thinking about was if we did like a fun, ask me anything episode, I don't know if there's any interest in that. So I guess if people are interested in that option, shoot us a note on social media at rePROs Fight Back on Facebook and Twitter and reprosfb on Instagram, or you can email me at jennie@reprosfightback.com. So, you can let us know if you have questions you'd like me to answer, or if you have a different idea for something we could do for that episode, that's going to come out on election day. I just don't want to do something too serious. We all are going to need a pick me up to deal with all of the stress. So I think with that, I'll just turn directly to the episode. I was really excited to have Leila Abolfazli at the National Women's Law Center on to talk about Ruth Bader Ginsburg's legacy and what's at stake. So I hope you all enjoy our great conversation. Hi Leila, thank you so much for being here today.

Leila: Thanks for having me.

Jennie: Do you want to take a quick second and introduce yourself, including your pronouns?

Leila: Sure. I’m Leila Abolfazli, I'm the Director of Federal Reproductive Rights at the National Women's Law Center. And I use she/her pronouns.

Jennie: I'm really excited to have at least the first half of this conversation, because it's pretty inspiring and amazing. And that is Justice Ginsburg, her legacy.

Leila: Yeah. When you take a moment to reflect on her career, it's amazing that she had the career before she was a judge. And then the career as a judge, both were very significant and really changed a lot of how we look at the law. But the fact that she had very successful, two parts is an incredible, as a starting point, I personally was reflecting on that. She changed my career. I happened to be in the Supreme Court when the court announced its decision on Gonzales v. Carhart. And it was a random day. Nobody knew it was going to come out that day. I was finishing up law school and when Justice Kennedy read the majority, which talked about how women regret their abortions and we need to protect them, it was just really terrible. It was incredible the moment Ginsburg started reading her descent and it was when you really felt you could hear a pin drop. It was that quiet in the court. And you could tell something was shifting in the way that she was talking. I always like to say that that really started off my career in working on the issues, because I like to say Kennedy really ignited it, but it also shows the importance of RBG sitting there and having that voice at that time. And the reason I share that story is I think she helped do that for a lot of people helped make claims in court that allowed women's participation in a range of way helped battle stereotypes. That ensure that men could be the caretakers over the years, she really opened up a lot of doors either by making sure the law changed or by showing what was possible, even in her own career.

Jennie: That's so important. You're right. She had two careers that anybody would be so proud and in awe of having, and she had two together. Right? So let's start and talk about before she was on the court. So a little bit about when she was a litigator, cause she made some pretty historical moves.

Leila: The legal theories that she presented in court were novel at the time, she gave credit to others who had really provided the foundation, including the theory of discrimination on the basis of sex and what that means. So, it really started the ball rolling on a range of changes that have happened in the law. People keep pointing out some of the examples today, like a woman couldn't open a credit card in her own name, many of the things that for those of us who came the generation or generations after her, can't even imagine what that was like. That you are not a person in your own, right? As a woman that you were always linked to some man being in control of property decisions or other decisions like that. So, she worked with other people. And so that isn't just always one person. And I think it's important to recognize that I don't know if it was a lot of people, but there are people there with her movement and making these changes and advocating to use a law as a mechanism for change. I always think about the caregiver story, because what was interesting about her is she really saw the harm of stereotypes in either direction, the ones where women are the caretakers at home, and so let's design laws to support that system, which meant that the system didn't recognize that. And when they were the caretakers in the home, same when a person passes away in a marriage who should get the money afterwards? And the perceptions of men are the ones who make the money and shouldn't get the pensions afterwards. So, there's a range of ways that she went about addressing what discrimination on the basis of sex looks like. And I think that was also really forward looking that it wasn't just about getting women out to the workforce, but ensuring that people saw the range of work that men also do that also helps women go into the workforce to show that men could be at the home taking care of aging parents or whatnot.

Jennie: I also really liked the stories that you saw about when she was a professor and would have her students come into her home for talks. And so, she would be giving the talks and her husband would be the one in the kitchen cooking. And so showing the example in the home life as well, was also really striking for young people to see,

Leila: Yeah, Marty, her husband played such a central role in her life doing the things that allowed her to thrive and thinking about that and partnerships today and what it means to split the work at home… there's stories that the school would call her whenever there was an issue with the kid. And she was like, well, did you call my husband? And they're like, no. And she was like, well, call my husband. And what's interesting is when she was doing this, I'm trying to calculate, but like the 70s and 80s and why I find that particularly impressive and incredible is the struggles that we are in right now. And that you've seen article after article, especially under the pandemic when the kids are home and all of the conversations we've had about the second and third shift for women who are mothers and a heterosexual couple and how that's all just been dramatically worsened over the last six, seven months. And what does it mean to share the work and whose work is valuable? And Marty working in a law firm made more money probably than she did, but they looked at value and work as something different than just monetary value and how really revolutionary that was in the 70s, because it isn't even a thing today. And as we struggle, and as I struggle with being a working parent at home and how to balance and how to say what work is valuable, it is incredible that she really showed that to people, her students, and then subsequently her clerks afterwards. So Marty really took one there, but thinking about a lot of the people who are doing the work today and take on the cooking still, and that it really is too much.

Jennie: As someone who lives by herself and has to do all the things, it would just be so amazing to have somebody who is taking on part of that. And there are so many people, particularly women who are in relationships, who are still taking on all that burden, even though they are married.

Leila: That's right. And if we don't have honest enough conversations about how a lot of people, particularly people who had identify as super strong feminist and working for gender justice, and I put myself in a bucket about how I do end up shouldering more of the work at home. And what does it mean to demand a difference? And so, to your point, yeah, it's having a support in the household for someone who is home by themselves and someone who is in partnership, those are really important conversations because what are we being held back from accomplishing as we are still doing all the things that life requires.

Jennie: Yeah. And I also really liked going back to her strategy of showing how these gender norms don't just harm women, how they harm both [genders]. And I think that was so innovative back then, because even now when you have those conversations, it still seems somehow new to be like, listen, the gender roles that are set up, don't just harm women. They also harm men and still for so many people, that's just, ‘whoa, you just blew my mind’. I cannot grasp that.

Leila: And again, I think it's where the conversations happening and how are we having this conversation or the conversations across two men talking about the struggle is that they might be experiencing if they're out there being responsible for holding up [a family] financially and what that feels like, and do they actually want to be doing that? Would they rather be home or the idea of what they also get away with if they're not splitting the chores and what that does to the relationship itself, the health of the relationship. So, I think that's right about showing it and what that means. And she's still to this day is one of the rare people who have done that. I think there's a broader conversation too, about how gender justice helps everyone. It's not just about helping those who are being discriminated against and it's a similar narrative there.

Jennie: So that takes us to her time as a justice. And she has written a lot of opinions, but she's really known for her dissents. To me, do we want to talk a little bit about kind of her impact and her legacy on the court?

Leila: It's interesting thinking about the questions she asked during oral arguments in Whole Women's Health, for example, thinking about dissent in Hobby Lobby and the mind field that the court has opened up and allowing reference to be applied the way it did…I think that the one thing that you're seeing in all the reporting, she's a careful jurist. She orders over readings and writings, and you saw that and what she would ask and what she would write in the Hobby Lobby case for me, since that's where I have more expertise, she really saw what this would mean in terms of weaponizing RFRA. And that was a case they issued in 2014. And she said it was going to be a minefield. And six years later, we see what that's like under the Trump administration, where they really cite RFRA and really are using an incredibly broad interpretation of RFRA to a bunch of exemptions that are unlawful and harmful. So thinking about South Carolina, relying on RFRA to grant a South Carolina adoption agency to discriminate on the basis of religion, it is terrifying and she really called it back in 2014. She definitely called it in 2013 in the Shelby County decision and even thinking about, and this is just incredible, she listened to the oral arguments and the birth control challenge in the summer from her hospital bed. In her dissent, they're really talking about the upending of how we look at claims of discrimination on the basis of religion or objections based on religion and the balancing in our country that has a bunch of different beliefs and the balancing we need to do and how that court really seems to be throwing out any sense of balance. And so what is interesting about her writing and her dissents in particular is that it's always looking ahead and telling us, this is what you need to look out for, or this is how you need to address [this] better…dissent being cut clear, like “Congress, this is what you need to do.” And so she would talk about what was wrong about the decision. And she would also say here is where I see this going. And I think that's really important that she was always looking ahead. And I think that probably carried over from her advocacy strategy back when she was a litigating lawyer.

Jennie: So another thing that makes me think of talking about the birth control case decision came this summer was her centering the person and thinking about the impact of the person who will no longer be able to afford birth control instead of arguing like the high concept of companies having religious freedoms.

Leila: That's right. I think that is something she would bring to the table is talking about real life impact. And hopefully it's just a sort of my work and continue that going forward, but really talking about, as you say, the impact on people who are now dead tonight coverage, and it's so important because in all the birth control cases, that is what was missing government. And you have the objectors and you don't have the people who need coverage of birth control without copay of the full range and get what they need. And you didn't have that right now, when data is showing that people are definitely trying to avoid pregnancy right now, and the insecurity across all measures that people are feeling financially, emotionally. And the idea then that a boss can say, “yeah, you work for me and I pay you for it. And as part of that payment is insurance coverage. But guess what? There's one central thing that you actually need that I'm not going to cover.” We never think about how then that changes the way a person approaches their healthcare. I mean, the reason we fight for covering people's healthcare is that they then get the healthcare they need. If they're not covered, they get the method that is not right for them because it's cheaper or they go without, or they skip days. And this is not restricted to birth control, but birth control is like how other people approach medicine. And so, it is just so not only shortsighted the idea that employers get to object, but it also refuses to acknowledge that these workers are being denied their compensation and their rights just based on the place they happen to work. And that's just not fair.

Jennie: She's really going to be missed on the court. And it's really hard to think about the future right now with her not there. So I guess we need to turn and start thinking about what that means. So maybe you should talk a little bit about what's at stake right now. We're really kind of at a precarious point, and there are big cases that are in the immediate future coming, but there's also just longer term and what's at stake.

Leila: Yeah. I think as we've thought and talked a lot about, ever since her passing last week, about what this means for people, there's the top line of existential feeling of a system that feels rigged and is being designed to hold back progress in the decades, coming on a broad range of issues. If you think about what we faced in the last seven months, this reckoning on racial justice that is really getting the country's interest in a way that is important and valuable and necessary. And thinking about the reforms that need to take place and thinking about COVID and the incredibly disproportionate impact it's having across, this background, Black, Latinx, indigenous people, and the way that they were disproportionately impacted, and that we aren't even talking about that, think about the bans that they allowed on abortion care in Texas, what is happening on voting, what is happening on the census and then the fires across the Western coast. And it really feels like a moment where everything that a bunch of social justice movements have been talking about, really are all caught onto a ball going down the hill and it's this massive thing that we have been screaming about. And so when I think about the legislation that will need to address these major issues, I'm then thinking about a 6-3 court where three of the justices will have been appointed by president Trump, who doesn't believe in science, who has suggested he wants to be in power forever, who keeps lying about voting, who attacks immigrants at every corner, the Muslim ban, and then abortion, and what he says about BLM protesters. It's just, it is daunting for any of us who think about justice and how we want to move forward and create new laws that really support the people in the country and not just the rich and the wealthy and the white. It's hard to think about all that and how the impact of even having five justices who no longer have to look to Justice Roberts on how they're going to rule. It's important to note that Justice Roberts was the fifth vote siting with the four liberal justices and a number of cases. But if you look at his decisions or his concurrences, they were like Trump administration or states, you could have gotten what you were trying to do if you did it right. So, you could have done what you're trying to do with the census, but you just did it wrong. Same with DACA. Basically, you can do what you're trying, just follow the law, which as we know, the Trump administration doesn't really do. And abortion definitely falls into that where he said, “I begrudgingly sign on to thise opinion supporting striking down the Louisiana law, but only really because I really can't strike down a decision from four years ago, but hey, state, send me another restriction.” So what happens to him when he no longer is the fifth and you have three Trump justices who there are people out there like Senator Hawley and Cotton who were clear about what the role of these justices are. And it really is to take back a right that they don't agree with. So, when I think about the moment where in, I guess I should call what RBG did was to look ahead and to start building for what we want in the future and fighting the fights now, but really building up to a new world. And I think that's important in particular, when you think about abortion access, when fighting to protect what is currently in place is just not enough. I mean, when you have the many restrictions in place that we do that seek to deny the dignity of people seeking care, that's not the world that I'm fighting for. And so sure hold the line, but also the line needs to be moved forward where it actually protects the privacy, equality, dignity of those who need the full range of reproductive healthcare, including abortion.

Jennie: Yeah, absolutely. I mean, I think that's something we've definitely talked about on the podcast before that Roe has always kind of been a right in name only, it's always been out of reach for so many people and it's just getting further and further out of reach for so many. So it's so important that we're not just fighting to keep what we have, but we are fighting to expand it. And when I think about LGBTQ rights, like again, looking ahead, it's important. We fight to keep what we have, but also know that they're already starting to carve out underneath what we have, which is what we talked about earlier in the terms of like birth control, which was with RFRA. So religious exceptions, you can just kind of start to see that coming and start to worry about what that's going to mean and know that we're already not at a place where we need to be. There's so much to fight for.

Leila: That's exactly right. And I'm so glad you brought up religious exemptions carving out from civil rights laws and really [the SCOTUS LGBTQ case this summer]. And the concern that then what does it mean to allow for exemptions from that huge win that applies across the range of laws? And that really is the strategy of those who want to say, don't worry, we're not getting rid of title seven civil rights law, or we're not getting rid of Roe, but we will allow so many carve-outs. Really, if the discrimination is coming from those, you are seeking to carve out, I think that that's exactly right. That another Trump justice would just add to the numbers for supporting the future carve-outs and exemptions and undermining. So that really those who already struggle in life for healthcare or employment or security, those are the people who are going to continue to feel the harm, discrimination in the workplace, et cetera. When religious exemptions are going to be a minefield that Ginsburg talked about.

Jennie: So when I think of all of this, I can get pretty paralyzed. There's just so much that worried about and concerns. So I think maybe it's time to turn to what we always try to focus on at the end and that's what can listeners do? So right now, what actions can people take to fight back on some of this stuff?

Leila: For one thing, I think people are paying attention to our democratic institutions and the way that we hadn't before the Trump administration, how are things supposed to work? And why are those ways that they're supposed to work important? The checks and balances of the different arms of our government. And so I think being engaged in the democratic process and looking at institutions and how they're working and how the Supreme Court fits into this broader checks and balances point and why we care about the court. And it is not just because we care about Roe, it's because the same people who want to overturn Roe v. Wade also want to get rid of the ACA. Also want to pull back on voting rights. Also want to pull back, et cetera, et cetera. And that is why it is important. If you get engaged, you get engaged in an issue to remember the broad other ranges, where you're all connected to it. It is really the reproductive justice framework. And so the partners that I work with that offer that frame to really engage in. And so I look to them and their conversations about all the different pieces. So learn more about that and get connected. And that if you do get involved in this particular issue, climate justice, whatever it is, be thinking about how all the other issues are also, we're all rising and falling together. And I feel that acutely right now. So one is you find an issue, engage in it, but remember the other ones that are up as well. The other thing is to start dreaming of the world that you want to live in. And I know that's really hard to say right now, but that's all I have right now. I have two little kids and it's really hard to think about the next few decades for them because of the crises we're really going to have to deal with. We will be forced to build a new world. And so what do you want that world to look like? And how do you get there to not be afraid of dreaming? Because that's sometimes all we have. And so right now thinking about Justice Ginsburg’s litigation strategy, and it won't be only the law that helps us now, but it will be a piece of it, but what are the changes we need to make? And if you center people who have been the most uncentered, non centered over the past few centuries, what does that mean? And how do we center those who've not been centered the most? And I think that's where I'm leaning to. And I'm looking to a lot of talks about this from Black women, other communities of color saying, this is what we know needs to change…There's a lot of in looking ahead, looking on the ground and seeing what solutions people are offering on the ground. So I think that in order for us to survive right now, we need to be looking far ahead that this is a longer fight… we are trying to center that abortion care is part of the comprehensive healthcare needs that people may need at some point in their life. And so how do we make sure they have healthcare? So this is like, we're having a conversation about having support in your home so that they can thrive in a way that they can. And it's good for all of us.

Jennie: Well, that seems like a great place to end. Thank you so much for being here. It was so much fun to get to talk to you about all this.

Leila: Thanks for having me. This was a lot of fun.

Jennie: Okay, everybody. I hope you enjoyed my conversation with Leila.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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