Justice Ruth Bader Ginsburg is laid up in a hospital bed, but she still came out swinging in defense of birth control during Supreme Court oral arguments Wednesday.
Thanks to the coronavirus pandemic, the Supreme Court is now live streaming audio of its arguments — a first for the historically technology-shy high court, which is now working remotely. That decision let Ginsburg, the oldest justice on the bench and a four-time cancer survivor, chime in from Johns Hopkins Hospital, where she’s been resting after undergoing “non-surgical treatment” for a benign gallbladder condition.
The Wednesday case is the latest in a long line of lawsuits that deal with the Affordable Care Act’s requirement that employers provide free insurance for birth control through their insurance plans. Reproductive rights advocates and religious freedom proponents have been at war over that mandate for nearly a decade now, and last year the Trump administration issued new rules that expanded the number of employees who can refuse to cover birth control.
Under those rules, employers with religious or moral objections may avoid offering the coverage. But after Pennsylvania and New Jersey sued, the U.S. Court of Appeals for the 3rd Circuit blocked them from taking effect nationwide last summer.
When it came her time to talk, Ginsburg didn’t pull punches.
“You have just tossed entirely to the winds what Congress thought was essential, that is, that women be provided these services with no hassle, no cost to them. Instead you are shifting the employer’s religious beliefs — the cost of them — onto the employees,” Ginsburg told Solicitor General Noel Francisco, who was defending the Trump administration rules alongside the Little Sisters of the Poor, an order of nuns who say covering contraception for their employees would violate their religious beliefs.
“The women end up getting nothing,” added the liberal icon, explaining that women without birth control coverage will likely be forced to hunt for coverage from other government programs — like Medicaid — or end up forking over the cash out-of-pocket. “They are required to do just what Congress didn’t want.”
In debates over religious liberties, Ginsburg said, the two sides should try to come up with a solution that balances everybody’s needs and wants.
“This idea that the balance has to be all for the Little Sisters-type organization, and not at all for the women — it just seems, to me, to rub against what is our history of accommodation of tolerance of respect for divergent views,” Ginsburg said.
The arguments were more orderly and less spiky than they can be when the justices are all gathered together. In normal circumstances, where the justices sit behind a high bench and overlook the lawyers presenting each side of the case, the justices will often interrupt the attorney with rapid-fire questions or ping pong off one another’s arguments. But on Wednesday, Chief Justice John Roberts called upon each of the justices to ask questions in order to seniority.
Still, Ginsburg wasn’t the only justice who took on the case with uncharacteristic zeal. Justice Clarence Thomas, who rarely speaks, asked questions about issues like governmental and judicial authority every time Roberts prompted him. (Though there was a brief snag at the beginning of arguments, when Thomas didn’t answer Roberts at all, forcing the puzzled justice to skip over him and go straight to Ginsburg.)
Beyond Ginsburg, the justices were also clearly frustrated that they were being asked to rule, yet again, on the line between offering birth control and protecting religious freedom.
“The problem is that neither side in this debate wants the accommodation to work,” Roberts declared at one point. “Is it really the case that there is no way to resolve those differences?”
Cover: U.S. Supreme Court Associate Justice Ruth Bader Ginsburg speaks during a discussion on the 100th anniversary of the ratification of the 19th Amendment at Georgetown University Law Center in Washington, Monday, Feb. 10, 2020. (AP Photo/Patrick Semansky)