The “Notorious R-B-G”
Ruth Bader Ginsburg mural on U Street NW, Washington, DC USA – Artist Rose Jaffe IG:Rose_Inks
On Friday, September 18, 2020, US Supreme Court Justice Ruth Bader Ginsburg (RBG) passed into eternity leaving behind a twenty-seven-year legacy on the Court that has some commentators lauding her life, and admirers deeply mourning her loss. Her death also kicked off a firestorm of debate about whether the President should fill her seat before the next election and the media air waves are now full of rhetoric from all sides. That she was a strong and courageous woman cannot be doubted, especially when one considers her struggles with various forms of cancer, and her determination to develop a high-level career at a time when it was less common for women. Her example became a rallying point for women throughout our country, and her positions supporting “women’s issues” earned the appellation a “champion for women.” The entertainment industry made a feature length Hollywood film about her life. In the minds of many, she attained a kind of cult figure status.
In fact, some of her followers affectionately dubbed her Notorious R-B-G, a play on words from the moniker given to the hip-hop and gangsta rap celebrity Chris Wallace, AKA Biggy Smalls or Notorious B-I-G. This is a rather interesting juxtaposition since there are very few similarities between these two public figures. Both were from Brooklyn, NY and both had films made of their lives. Both are even remembered by their admirers for the words they wrote. They stood, however, on very different sides of the law. Wallace’s life ended when he was shot to death at the age of 24 (ironically, this happened while he was in California promoting an album called Life After Death). His end differed distinctly from the passing of RBG, a respected jurist who succumbed to cancer after reaching nearly 90 years of age. Wallace was notorious for sure, but so was RBG. Her notoriety, however, was primarily tied to her judicial philosophy and, in particular, her fervent stance on, and interest in, so-called women’s reproductive rights, i.e., abortion. RBG was also notorious for at times reading her dissents from the bench which is rather unusual at the Supreme Court. She seems to have done this out of a desire to especially highlight the substance of certain dissents in the hope that her arguments might eventually become the law and part of majority opinions in future cases.
The first time she gave a verbal dissent at the court was in the 2007 case of Gonzalez v. Carhart (Carhart). This case was an appeal by then Attorney General Alberto Gonzalez to the Supreme Court to review lower court decisions which held that the Partial Birth Abortion Ban Act of 2003 (the Act) was unconstitutional. The case grew out of an action in federal District Court initiated by a group of doctors, led by abortionist Dr. Leroy Carhart. Their suit attempted to prevent the Act from becoming effective. The case was combined with another very similar case and together presented two primary arguments to consider the Act unconstitutional. One of the arguments was essentially that the Act was too vague in its description of proscribed abortion methods and could therefore, if allowed to stand, preclude certain abortions already deemed acceptable, thereby putting an undue burden on rights to abortions. The other primary issue was that, since the Act did not give an exception for abortions necessary to protect the health of the mother, it violated the Constitution as interpreted by the Supreme Court and earlier abortion cases beginning, of course, with Roe v. Wade. This was an essential part of their position because the line of key prior cases dealing with abortion included the requirement for such exception. The District Court agreed and held in favor of the doctors, thereby declaring the Act unconstitutional. Attorney General Gonzalez appealed to the US Court of Appeals for the Eighth Circuit and then, having lost there, appealed the case to the Supreme Court where, thankfully, he ultimately prevailed.
The Supreme Court, in a 5-4 decision held that the Act was, in fact, constitutional, and was not too vague and did not need to contain an exception for the health of the mother, as had been successfully argued in the lower courts. The decision quoted the specific type of abortions that the Act sought to criminalize when it said, “… the Act’s definition of partial-birth abortion requires the fetus to be delivered ‘until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.’” It is rather amazing that there should even be an argument about this. The Court further noted that in drafting the statute Congress essentially saw no likely situation where there would be a need for an exception for the health of the mother in partial birth abortion cases. Consequently, it was satisfied with the statute and did not strike it down. Perhaps the Court was moved by just how extreme the procedure is. We should note, however, that in breaking down the language of the opinion it is clear that this court would have been willing to strike down a statute that infringed on abortions that were, let’s say, marginally less shocking. Therefore, though we must be pleased with the decision of the court, we must recognize there is a long way to go to stop the barbarism. There are apparently, a lot of notorious members of the highest court in this great land. The Notorious RBG is far from being alone among the austere panel that will be required to give an account to God about this whole subject. We must also remember that Congress previously passed a similar Act under President Clinton, but Clinton vetoed it. At the time, there were insufficient votes to override his veto! Yes, that is correct! The Congress of the United States of America could not get a law passed that simply made this horrible procedure illegal, partly because a president of the United States vetoed it and Congress could not override him. There are many in Washington who are notorious.
The Notorious RBG wrote for the minority in Carhart with Justices Stevens, Souter, and Breyer joining in her dissent. For our purposes it is instructive to focus on what she said when she began her notorious new style of verbally sharing her dissenting thoughts. On the first argument she essentially said that the Act was in fact vague in her view and therefore would allow other repulsive abortion procedures (my word) so this one should be allowed as well. In other words, the statute can be interpreted to allow other pretty horrible abortions that admittedly might not go as far as partial birth abortion, so we might as well allow them all since there really isn’t a substantive difference. Conceptually, she may have had a point there, but why not say the opposite — that the other procedures should not be allowed either since they are also bad? Well, obviously it is because that is not what a champion of women’s rights does. According to our culture and its rules for determining heroes, a champion of women’s rights believes that it is so important to leave any abortion at any time unfettered by intrusions of the law or the state, that if it means killing a child who is only a few moments away from birth so be it, even if the birth has already begun and the baby is almost out and its fingers and toes are moving! Notorious indeed!
On the second argument, the Notorious RBG forcefully expressed her view that it is just completely unacceptable to her for any abortion law to exist if it doesn’t have an exception for the protection of the health of the mother. According to this pop culture icon, it is actually possible to imagine a situation where it could be more beneficial to a delivering mother’s health to kill a baby (in a rather grotesque way to be perfectly honest) who is literally already partially out of her body (and would have to be removed in any case if it in fact died) than to just let it finish the birthing process. Thankfully, Congress and the Supreme Court had a different view. Anecdotally, in her dissent the Notorious RBG also gives us some insight into her worldview when she bristles at referring the abortion doctors as such and not always by their medical specialties, as well as her discomfort for referring to the fetus as an “unborn child” or a “baby.” She also seemed quite bothered by traditional roles for women. She is quite clear that she views the rights established by Roe and the cases that follow as protected from any “contact” by the state.
The Notorious RBG consistently held these views throughout her career. A broader examination of her opinions, speeches, and articles would reveal not only her absolute commitment to abortion, but also her disdain for religious freedom and her overall contempt for contextual reading of the founding documents of this nation, and the idea of Framers’ intent. She was particularly adept at blurring the lines of distinction between the branches of government so that the Supreme Court could do its magic and create law while being a completely unelected branch with lifetime appointments, and thereby not answerable to the people. Aside from being disturbing to those who understand what the Constitution is intended to be, this is somewhat ironic in light of the fact that she graduated from James Madison High School in Brooklyn, named for a man who was one of the framers most known for his support of Federalism and the need to have separate branches of government that were protected from intrusion by the others. To my mind, though, the position that the Notorious RBG took on partial birth abortion really is the pinnacle of her notoriety.
From a Christian perspective it is certainly appropriate to know where the civil authorities stand on issues of importance to us. We should know the trends in our land that affect us and which impact the freedoms that we have, especially those that support biblical principles and worship. Having said that, though, it seems that the most important idea to reflect on as RBG is laid to rest is the most important thing she has is common with The Notorious BIG. When Ruth Bader Ginsburg passed into eternity she passed into a God-less eternity and now knows the truth and how very wrong she was. Of course, we cannot know what happened in the last moments of her life or Chris Wallace’s life, or anyone else’s life. We do know, however, that If she never came to a saving belief in Messiah Jesus she now has all of eternity to suffer for that and that reality tragically transcends her judicial philosophy which developed long after the sin that condemned her to judgment. Many thousands will mourn her and she cannot tell them the truth. We can. As much as we might be upset for what she believed and the negative impact she had on our country, a healthy response for us would be grief; grief not for the loss of a great champion, but grief for a lost soul. May her death motivate us to share our lively hope all the more.
Dr. Craig Hartman, an attorney, is the founder and director of Shalom Ministries Inc., based in Brooklyn, New York. A frequent conference speaker and teacher, Dr. Hartman is part of the leadership at Bethel Baptist Fellowship of Sheepshead Bay, Brooklyn, and also serves on the Executive Board of FBFI.
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Great perspective. Thank you, Dr. Hartman.