The notorious Ruth Bader Ginsburg on men’s rights, Hobby Lobby, and the ‘dream’ reproductive freedom case

Last night I made small talk with a friend as I sipped red wine and munched on a piece of raw radish plucked from an elaborate vegetable tray behind me. We were standing in a room full of mostly women, and we were waiting for Ruth Bader Ginsburg to arrive. It was the 30th anniversary celebration of the International Women’s Health Coalition, a great organization that promotes and protects the sexual and reproductive rights and health of women and young people — particularly adolescent girls — in Africa, Asia, Latin America, and the Middle East. (I would know — I used to work there.)

But the mood in the room was more anticipatory than celebratory. One woman looked over her shoulder while nodding in agreement with something being whispered in her ear by another woman wearing a Very Nice Pantsuit. Snippets of conversation floated past me: expected voter turnout in the NYC election happening that day; news of promotions; updates on various loves. Everyone seemed to be biding their time until the legendary justice would arrive. Amidst all that buildup and small talk, I could have easily overlooked the small figure that eventually moved past me and through the schmoozing crowd. If not for the heft of her security detail, I would have missed her entirely. As things were, I caught a glimpse: an elegant white lace top with matching gloves, sapphire red earrings, a downright plucky cat brooch pinned to a black blazer (variation of a Supreme Court theme). Luckily for me, it turns out that small talk was  a small price to pay to hear RBG speak as candidly as ever.

ON THE CHANGING CLIMATE AROUND GENDER EQUITY IN THE U.S.

“The climate has changed in this country, which makes it possible to break down barriers to [gender] equality. I remember when the so-called ‘liberal’ Warren Court turned down pleas to allow women to serve on jury duty as men do. Cases [on gender equality] literally fell into our lap…In Reed v. Reed, Sally Reed was an everyday woman making her living taking care of elderly people. She had a great tragedy in her life, which was that she was divorced and she had a young son who…was depressed, and the boy killed himself. Sally wanted to be the administrator of his estate, and perhaps out of spite, her former husband applied for the same right. The judge had no choice, since the law of Idaho says that [in cases where both sexes have an equal claim], males must be preferred. That law denied equal protection, and triggered the [launch of the] women’s rights project for the ACLU.”

ON WHY ‘MEN’S RIGHTS’ CASES CAN SOMETIMES BE GOOD FOR GENDER EQUALITY

“A man named Stephen Wiesenfeld was happily married. She [his wife] was the earner and he was a homemaker. After she tragically died in childbirth, he was told he could not receive her social security benefits. In this case, the plaintiff happened to be a man. But we understand where this discrimination began: with the woman. She paid the same taxes but doesn’t get the same protection. This is a good example of how gender discrimination is bad for everyone. It also ends the stereotype of women as givers of child care and men as solely breadwinners. [We need to] tear down those barriers so a woman or a man could pursue whatever path in life they had the G-d given talent to pursue. That was the project. The court was catching up to a change that had already taken place.”

[Ed. Note: Ginsburg kept in touch, and years later performed Mr. Wiesenfeld’s wedding.]

ON EXPLICIT VS. SUBTLE DISCRIMINATION

“We have been amazingly successful in getting rid of explicit sex lines in the law. But there is still more subtle discrimination. One of the biggest problems to overcome is unconscious bias. Consider the example of the symphony orchestra [in the 70’s]. They had to drop a curtain in front of the auditioners so their sex remained anonymous. Women auditioned shoeless so they wouldn’t hear a woman’s heels. Only then did women start appearing in orchestras. This is unconscious bias.”

ON THE ‘DREAM’ REPRODUCTIVE HEALTH CASE (HINT: IT’S NOT ROE V. WADE)

“When case after case about abortion was being brought across U.S., there was a distinct [sense of a] woman’s right to control her destiny. But that wasn’t the line the Supreme Court took. That changed with the Casey case. This was a big effort to overturn Roe v. Wade. The pendulum had gone the other way. My dream reproductive freedoms case [involved] Captain Susan Starch, who was serving in Vietnam and became pregnant. This was pre Roe. Susan said ‘I want to bear the child’ even after being offered an abortion. They shipped her out, sent her back to the West Coast. This is someone who said, ‘I chose birth but my government said I can’t have that choice unless I give up my job.’ So, she sued…That idea of it being a woman’s choice to have a child or not…they [the army] saw great damage potential [in the public eye]. They waived her discharge and changed the rule.”

ON THE WEAKNESSES OF ROE V. WADE

It’s inexplicable to me for the court to say if a woman can afford abortion she can have choice, but that if she can’t afford it she doesn’t have that choice.”

ON THE NEW WOMEN’S MOVEMENT

“I think of my own daughter who grew up when women’s rights were vibrant. There was a book ‘Our Bodies, Ourselves.; I don’t see the women today having that same energy. Do the women today think ‘not my problem’? Do they take abortion access for granted?”

[Ed note: It was pretty disappointing to hear that RBG doesn’t see the robust young feminist movement in her midst.]

ON HOBBY LOBBY

“First of all, it’s important to realize that this decision was not made as a matter of Constitutional law. It was done under a law called the Religious Freedom Restoration Act. The Hobby Lobby owners had a deep religious opposition to abortion, and no one questioned the genuine nature of their belief. But do they have the right to hoist that belief on the workforce under them? Hobby Lobby is a commercial enterprise. All the women who are employed by them should have been protected by the health care law. It seemed to me to be an extraordinary decision. [There’s a saying that goes] ‘I have a right to swing my arm as far as I want to, until it hits the other fellow in the nose.’ And the other fellow in this case was women. So the idea that they could inflict this on the workforce was extraordinary. Preventative care is as important as many other things that a health care package covers. Maybe [the reaction to] Hobby lobby will get everyone — even some of my colleagues [on the Supreme Court] —  to think more about this issue than they [originally] did, when it comes up the second time around.”

Lori Adelman is feeling inspired.