Did Ruth Bader Ginsburg Just Disqualify Herself from Hearing the Texas Abortion Clinic Case?

The latest issue of The New Republic
features a long, fascinating
interview with Supreme Court Justice Ruth Bader Ginsburg. Among
other things, the octogenarian justice denounces the various
liberal pundits who keep calling on her to retire, attacks
Citizens United as the “one [current] decision I would
overrule,” and even gets a nice little jab in at her former
colleague John Paul Stevens (“He was always fair in assigning
dissents: He kept most of them himself”). But the most interesting
part of the interview occurs when the talk turns to abortion.
Here’s the relevant exchange with interviewer Jeffrey Rosen:

JR: And if Roe [v. Wade] were overturned, how
bad would the consequences be?

RBG: It would be bad for non-affluent women. If we imagine the
worst-case scenario, with Roe v. Wade overruled, there
would remain many states that would not go back to the way it once
was. What that means is any woman who has the wherewithal to
travel, to take a plane, to take a train to a state that provides
access to abortion, that woman will never have a problem. It
doesn’t matter what Congress or the state legislatures do, there
will be other states that provide this facility, and women will
have access to it if they can pay for it. Women who can’t pay are
the only women who would be affected.

JR: So how can advocates make sure that poor women’s access to
reproductive choice is protected? Can legislatures be trusted or is
it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the
restrictions states are imposing? Think of the Texas legislation
that would put most clinics out of business.

The Texas legislation to which Ginsburg refers is a 2013 statute
known as H.B. 2. That law placed various restrictions on abortion
access throughout the state, including requiring all physicians who
perform or induce abortions to have admitting privileges at a
hospital no more than 30 miles away from the clinic where the
abortion occurs. According to Planned Parenthood of Greater Texas
Surgical Health Services, which filed suit against the law, H.B. 2
serves no legitimate health or safety rationale and is instead just
a shadowy way for the state to harass and eliminate abortion
providers. In March 2014, the U.S. Court of Appeals for the 5th
Circuit took the opposite view, upholding
the provision as a constitutionally permissible health
regulation.

So what’s the big deal with Ginsburg’s comment? As law professor
Josh Blackman
observes, “What makes this comment so problematic is that she
referred to a specific law that is currently before the 5th
Circuit, and will be appealed to SCOTUS one way or the other…. It
seems that Justice Ginsburg has made up her mind about this law. It
is not a health measure, but a law to put clinics out of
business.”

To say the least, sitting judges are supposed to refrain from
stating how they will vote on a specific case that is likely to
come before them in the near future. If this dispute does finally
reach SCOTUS, don’t be surprised when the state of Texas demands
Ginsburg’s recusal.