DANIEL VAUGHAN: Ruth Bader Ginsburg makes the call on when a woman becomes a mother

May 31, 2019

Supreme Court Justice Ruth Bader Ginsburg doesn’t only claim the ability to interpret law anymore; she’s also decided that the law can strip a person’s identity.

In a footnote on her dissent on the high court’s recent ruling in a case called Box v. Planned Parenthood, which dealt with an Indiana abortion law, Ginsburg attacked one of fellow Justice Clarence Thomas’ arguments by asserting: “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.'”

Ginsburg’s statement isn’t just biologically wrong; it elevates abortion from being merely a “minor” medical procedure to one that bestows identity and meaning upon women in a way no other constitutional right can.

Thomas and Ginsburg were sparring over a provision in an Indiana law first signed by then-Gov. Mike Pence that governed the disposal of the remains of an aborted fetus. Current Supreme Court law says that regulations on abortion cannot impose an “undue burden” on a woman’s right to get one. But the Supreme Court ultimately ruled 7-2 that the remains of an aborted fetus — “fetus” being a Latin term that means unborn offspring — have nothing to do with the right to an abortion.

Indeed, placing regulations around the disposal of human remains is not a controversial topic — unless you’re Ruth Bader Ginsburg, and you’re rejecting any rules concerning abortion. As Thomas pointed out:

Justice Ginsburg’s dissent from this holding makes little sense. It is not a “waste” of our resources to summarily reverse an incorrect decision that created a Circuit split. And Justice Ginsburg does not even attempt to argue that the decision below was correct. Instead, she adopts Chief Judge Wood’s alternative suggestion that regulating the disposition of an aborted child’s body might impose an “undue burden” on the mother’s right to abort that [already aborted] child. This argument is difficult to understand, to say the least — which may explain why even respondent Planned Parenthood did not make it.

He went on to write that Ginsburg’s argument also “lacks evidentiary support.”

Ginsburg wanted to expand abortion rights to effectively prevent the state from looking at the procedure as one that is life-ending. But she went a step further than that when she added in her footnote: “Justice Thomas’ footnote displays more heat than light… A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.'”

Ginsburg was wrong on the law, wrong on the facts of the case, and she’s wrong on the biology of what happens in pregnancy.

Some have criticized Ginsburg for insinuating that women who lose unborn children — including those who suffer heart-wrenching miscarriages and stillbirths — are not “mothers.” Indeed, that seems pretty harsh to say of someone who just lost an expected child. (After all, people mourn children; not “clumps of cells.”)

I suspect Ginsburg doesn’t mean that at all; instead, she’s saying that a woman who has an abortion is rejecting motherhood, and undergoing the procedure strips the woman of the title of “mother.”

But that’s entirely wrong.

In Planned Parenthood v. Casey, the court plurality opinion included a passage authored by Justice Anthony Kennedy that everyone colloquially refers to as the “mystery of life” passage. Kennedy wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Ginsburg argues that this passage is ultimately bunk; the state can dictate in this case whether a woman is a mother, she says. The problem is that there are women who had abortions who claim that they’re mothers. But like women who’ve had miscarriages, Ginsburg says they’re wrong.

And if Ginsburg doesn’t say that, what she’s arguing is that a woman is only a mother — and that a “clump of cells” is only a human — if she decides she wants to keep the fetus. That is: your entire worth as a human being is not there because you inherently have that status; it’s because a third party, your biological mother, decided you had enough value to keep around.

That mindset provides the foundation for eugenics. Advocates for the practice claim your worth comes only from the gene lottery you won at the embryonic stage.

Ginsburg doesn’t use genes — she looks at whether another adult human wants the child — but it’s the same logic with only the variables changed. If your mother wants you, you’re a human. If not, you’re nothing.

That’s why Thomas has expressed concern that this current environment, pushed by the Ginsburgs of the world, is more conducive to selective abortions.

“The individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child,” he writes. “Abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”

Ginsburg revealed her hand in a footnote: she’s ready to defend eugenics if it means defending abortion. And Justice Sonya Sotomayor seems prepared to join her.

The extremism of the left on abortion is growing with each passing day. This endless bigotry must end.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.