Bench Memos

Justice Ginsburg Disqualifies Herself from Ruling on Texas Abortion Law?

In the course of a long interview with the New Republic’s Jeffrey Rosen, Justice Ginsburg offers her views on the merits of Texas abortion legislation now under challenge in the Fifth Circuit:

[Rosen]: 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?

[Ginsburg]: 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 courts can’t be trusted either. Think of the Carhart decision or going way back to the two decisions that denied Medicaid coverage for abortion. I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction. It will take people who care about poor women. The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel can’t. There is no big constituency out there concerned about access restrictions on poor women. [Emphasis added]

As law professor Josh Blackman points out, this comment by a justice on a specific law would seem the very stuff of which recusal obligations are made. 

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