The death of Justice Ruth Bader Ginsburg on September 18, 2020 leaves a vacancy on the United States Supreme Court and enormous uncertainty over the court’s future role in the protection of fundamental human rights. A nominee for Justice Ginsburg’s seat on the Supreme Court should be evaluated in terms of their likely impact on access to justice for critical human rights guarantees, including the rights to life, due process, free expression, privacy, health, freedom from arbitrary detention, and freedom from discrimination.
The following areas of Supreme Court decision-making–voting rights, the right to health, the right to reproductive freedom, and the interaction between religious freedom and other rights–are only some of the domains in which Justice Ginsburg’s replacement could either help to protect or weaken basic rights, with particularly significant impacts on people of color, women and girls, and lesbian, gay, bisexual and transgender (LGBT) people. The stakes of the decision before US elected officials are tremendous. We urge senators to thoroughly review any nominee’s record on these and other issues and to question a nominee closely about key rights protections that hinge on the Supreme Court’s jurisprudence.
The 15th and 19th Amendments to the US Constitution recognize the rights of all citizens to vote without discrimination. The International Covenant on Civil and Political Rights, to which the United States is a party, provides that “every citizen shall have the right and opportunity” without discrimination or “unreasonable restrictions” to “vote and be elected at genuine periodic elections … guaranteeing the free expression of the will of the electors.”
Over Justice Ginsburg’s dissent, the Supreme Court has already eviscerated federal oversight under the Voting Rights Act of 1965, enabling states to impose discriminatory restrictions on the right to vote. The Covid-19 pandemic has exacerbated these problems and the Supreme Court has already ruled to restrict voting rights, including by rejecting attempts by states in several cases to adapt voting procedures to the pandemic. With new legislation to restore federal oversight over voting pending in Congress, a new justice could play a pivotal role in either erecting new barriers or upholding the right to vote without discrimination.
Right to Health
The right to health under international human rights law does not guarantee a right to be healthy, but obligates governments to enact policies promoting available and affordable basic health services without discrimination. Governments should take particular care to ensure access to those most likely to face obstacles–people living in poverty, racial and ethnic minorities, persons with disabilities, women, and children, among others.
As the Affordable Care Act (ACA), Medicaid, and reproductive health care rights continue to be the subject of litigation in both federal and state courts, the Supreme Court is likely to act as the final arbiter on the constitutionality and permissibility of these programs. These decisions will have profound and far-reaching rights impact, at a time when the number of uninsured is already increasing. They will potentially determine whether millions of people in the United States will have access to health care during the Covid-19 pandemic and beyond.
Rights to Reproductive Freedom
Everyone should be able to exercise their reproductive rights and maintain their health, privacy, and dignity. In a series of cases over the last five decades, the Supreme Court has taken important steps to protect women’s health and human rights, including their freedom to access contraceptive care and abortion services. Recently, though, the court has shown it is willing to curtail those rights. Justice Ginsburg’s replacement will be poised to protect or undo jurisprudence ensuring women’s access to abortion.
A new justice could eliminate constitutional protections for women’s right to access abortion by upholding excessive regulation of abortion providers or by abandoning the Roe v. Wade line of precedent and instead leaving it to individual states to determine access to legal abortion. If that happens, many states might criminalize abortion. At least four states already have “trigger laws” on the books that automatically outlaw abortion if Roe is overturned, and dozens of others have laws that put access to abortion at high risk.
Even without fully overturning Roe, a decision that narrows the court’s understanding of what kinds of restrictions or regulations present an undue burden on a person seeking an abortion, or one that redefines the test for analyzing the constitutionality of abortion regulations, could severely curtail reproductive rights in the United States.
Sexual orientation and gender identity are integral aspects of our being and should never lead to discrimination or abuse. International human rights law protects the rights of lesbian, gay, bisexual and transgender (LGBT) to privacy, nondiscrimination, and equal protection of the law. While a recent 6-3 Supreme Court ruling banning employment discrimination based on sexual orientation and gender identity should remain settled law, other issues that are likely to come before the court will also be highly consequential for LGBT people. The court is likely to be confronted with efforts to limit the scope of or reverse landmark decisions protecting the rights of LGBT people, such as Obergefell v. Hodges, which established that same-sex couples enjoy the same marriage rights as different-sex couples. Even if this decision were not overturned altogether, a new justice may be considering challenges aimed at allowing states to discriminate against same-sex married couples.
Ensuring Religious Freedom Without Undermining Other Rights
Freedom of religion is protected under international human rights law as well as the US Constitution. While a government can craft accommodations for religious objectors, they should ensure that these are carefully constructed so that they do not come at the expense of the equality or dignity of others.
The next justice will most likely weigh in on whether an employer’s religious liberty permits them to refuse contraceptive coverage to their employees. Under the Affordable Care Act, Congress delegated the authority to define the scope of reproductive health services to Department of Health and Human Services experts. A 2011 recommendation included all Federal Drug Administration-approved contraceptives, sterilization, and education and counselling as part of preventive health services.
But in a line of cases, including Hobby Lobby v. Burwell (2014) and Little Sisters of the Poor v. Pennsylvania (2020), the court has permitted employers to raise conscience-based objections to the contraceptive mandate. In Ginsburg’s dissent to the 2020 Little Sisters ruling, she stated, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Continued litigation on this issue is expected, as the question whether the expansion of the refusal exemption is reasonable has been returned to lower courts.
The new justice will also be central to deciding cases involving efforts to seek religious exemptions from laws that protect the rights of LGBT people and reproductive rights. International human rights law recognizes the importance of the rights to freedom of conscience and religion, but also elaborates their limits, particularly where their exercise threatens to negatively impact the fundamental rights of others.
In recent years, litigants have sought to use the Religious Freedom Restoration Act and the US Constitution’s free exercise of religion clause to challenge laws requiring government officials to register the marriages of same-sex couples and laws prohibiting discrimination in education, employment, housing, health care, and public accommodations. In 2018, the Supreme Court issued a narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, sidestepping the larger questions. The court is set to consider the issue this fall in Fulton v. City of Philadelphia, a case involving a religious foster care agency that argues that it has a right to receive state contracts and support even if it will not comply with the city’s nondiscrimination requirements.