On Justice Ginsburg’s Passing, and Why I’m Seeing Red. Non-fiction by Olga Stein


On Justice Ginsburg’s Passing, and Why I’m Seeing Red

As I started to write this, I kept an eye on the live broadcast of Justice Ruth Bader Ginsburg’s Lying in State ceremony. Justice Ginsburg, who died on September 18, is only the 35th individual to be granted this honour since 1852. Holding the ceremony in the grand Rotunda of the U.S. Capitol requires approval of a resolution passed by both the House of Representatives and the Senate. After all, it’s meant to mark the passing of an exceptional individual—one whose service has had a transformative effect on the nation. Taking gender out of the equation, we can see that a Lying in State happens, on average, once every half decade. Yet Justice Ginsburg is also the first woman ever to be paid this tribute. It’s fair to compare this occasion and Ginsburg  herself, it seems to me, to some rare celestial event—kind of like the passing of Halley’s Comet, only far more rare.

I scanned the effusive comments popping up during the webcast. Most came from women. If words were flowers, then there was a profusion of bouquets—from shapely clusters of roses and lilies to colourful assortments of wildflowers. The words kept coming, like blooms multiplying and swaying in tandem in an expanding field. They also showed that the women offering these tokens of respect come from all walks of life. There were declarations of gratitude, and brief reflections on the effect that RGB’s contributions to women’s rights and anti-discrimination protections had on their personal lives. Many women expressed hope that the progress RGB helped bring about will be honoured and safeguarded—specifically, her work as director of the American Civil Liberties Union’s Women’s Rights Project (she made crucial contributions to the 1971 Reed v. Reed and other landmark anti-gender discrimination cases, such as Frontiero v. Richardson and Craig v. Boren), and as a federal and then supreme court judge (McGrath and Sandler provide a helpful summary, as does Spiggle[i]). Some of the comments conveyed fear of the possibility that the rulings RGB secured, which protect women’s professional aspirations and their reproductive autonomy, will be vitiated or overturned in the future.

Justice Ginsburg, one can’t but realize, is the very embodiment of the progress made with respect to gender equality. Career-wise, she fully realized her vast potential, and in her marriage and domestic life, from what we can see, she attained a remarkable kind of fulfillment, consideration, and respect. Her partner, Martin David Ginsburg, encouraged and supported her professional aspirations from the start of their life together in 1954. Later, in the early 1990s, he lobbied to get his wife appointed to the Supreme Court. “No other campaign for a seat on the Court had been spearheaded by a male spouse,” writes Jane Sherron De Hart in her biography, Ruth Bader Ginsburg: A Life (2018). All in all, Ginsburg achieved what every capable person with ambition aspires to in their public and private lives: recognition of their abilities, and enough support and freedom to do the work necessary to advance themselves. Yet she also knew from personal experience that these gains were hard-won, and that for other women barriers to professional success and personal well-being (including reproductive self-determination) would remain unless rights and protections were given enduring life by being inscribed with the precision and determination of commandments—becoming acts, amendments, clauses, and provisions—in constitutional and civil law.

RBG’s passing, and the current situation in the US—the looming election, which is bound to reflect the growing polarization of American society since 2016, the undermining of journalists, the rejection of face masks as a means of curtailing the spread of COVID-19, the BLM protests across the country, the often draconian efforts to quash them, and now the Republicans’ decisions to replace Justice Ginsburg with Judge Amy Coney Barrett, who is religious and a conservative practitioner of the law—have, in my mind’s eye, assumed the spectre of two tsunami-sized waves accelerating toward one another. I certainly hope that this image greatly exaggerates the animus between liberal and conservative Americans, between the country’s progressive and reactionary interests. As a Canadian, I would like my sense of a crisis in a country that is my country’s neighbour to be off by a mile, but the article penned by Shane Goldmacher and Katie Glueck, and published by The New York Times on September 27, is not reassuring. Here’s an excerpt: “[I]n nominating Judge Barrett to replace Justice Ruth Bader Ginsburg, Mr. Trump has pushed to the forefront a complex new stew of factors as Republicans play up her personal story as an accomplished 48-year-old working mother of faith. It’s a development that could sway or mobilize key voting blocs on both sides of the aisle: evangelical and conservative Catholic voters, abortion-rights activists and opponents, women and young people.”[ii]

Do we know what Judge Barrett would do with regard to women’s right to abortion if her appointment goes through? We do not, but there is some basis for surmising that she won’t be supportive of existing protections. Kate Smith, in her September 26 article for CBS News, “What we know about Amy Coney Barrett’s Judicial Abortion Record,” writes that “the federal judge has referred to abortion as ‘always immoral’ and offers something a former top candidate, Barbara Lagoa, doesn’t: A clear anti-abortion rights judicial record.”[iii] Adam Liptak’s assessment in “Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right,” published in The New York Times on September 26, is only a little less unequivocal. He writes: “Overruling a major precedent [the 1973 Roe vs. Wade, which established a constitutional right to abortion] is no small undertaking, of course. But Judge Barrett has indicated that some precedents are more worthy of respect than others.”[iv]

Barrett’s nomination and its implied threat to abortion rights is part of larger national context of attacks on women’s reproductive autonomy in the form of various restrictions on abortion rights. A June 2019 article, “Early Abortion Bans: Which States Have Passed Them,” authored by Mara Gordon and Alyson Hurt, and published online by National Public Radio (NPR), a non-profit membership media organization, offers a comprehensive account of where things stand with regard to individual states’ attempts to enact abortion restrictions. Nine states have passed early abortion ban laws, with Alabama’s efforts being the most extreme. If Alabama’s ban were to go into effect, no abortion would be allowed except in instances where the pregnancy endangered a mother’s life. The ban would not make exceptions for rape or incest. None of these laws are yet in effect “either because they have a future enactment date or because judges have put them on hold in response to lawsuits, or both.”[v] Early abortion bans have, so far, always been struck in court. Currently, there is no state law in effect that bans abortion before 20 weeks, but some of the newer regulations have not yet been challenged, “so they remain on the books,” the authors tell us. Moreover, they are indicative of an upward trend in terms of efforts to attenuate Roe vs. Wade. When contemplated alongside Judge Barrett’s nomination to the Supreme Court, it’s like hearing a siren go off a few blocks away: you don’t feel the need to flee, but the noise is audible and persistent enough to cause unease. If the danger is real, you tell yourself, someone should do something about it.

Then what can we expect when no one does? The Handmaid’s Tale series, which I have been watching on Crave for the past month, hazards to give us a glimpse of what happens when too many people fail to act—when too many become politically disengaged or abstain from participating because they’re convinced that they can’t make a difference. In Season 3, June Osborne, the protagonist of the series (written and produced by Bruce Miller and Eric Tuchman), and the dystopian novel by Margaret Atwood that inspired it, says something that in retrospect stands out for me. She says this in her whispered response to Eleanor, Commander Lawrence’s wife. Eleanor is a decent woman of delicate constitution, who has become unhinged by the realization that her otherwise devoted, brilliant husband had been one of the masterminds of Gilead’s regime. Depressed and confused, but perceptive enough to see the devastating consequences of the totalitarian theocracy her husband helped establish, Eleanor feels guilty by association. Knowing that she and her husband have been committing serious transgressions (not holding the stipulated monthly “ceremony” is just one of the laws they have repeatedly broken), and certain that they’re about to be arrested and then executed, Eleanor tells June that she deserves to die. “It’s my fault. I should have done something,” she tells June. “All of us are guilty,” June replies. Everyone should have done more to intervene when they had the chance.

June’s assertion might be argued with, but on the whole, as this disturbing series shows, many of the high-ranking women, wives of the regime’s commanders—though growing increasingly dissatisfied with the strict gender-based restrictions which they too have to abide by—were complicit in Gilead’s founding. They had, in other words, willingly and enthusiastically participated in a violent political project. The coup they supported would culminate in the colonizing of women and their bodies—not these wives’ own privileged and protected bodies, mind you—so as to ‘husband’ them as reproductive assets. In a future in which the majority of people are infertile, the most precious resource, and hence one over which Gilead’s regime aims to exert the most stringent control, comes from the bodies of the women who are still fertile: it is the children they are able to bear for couples who are childless. The powerless handmaids are assigned to the senior members of the regime and their wives like spoils of ancient wars. It is these other women whom the wives are willing to see exploited, harshly disciplined, and discarded when they can’t serve their purpose any longer. Margaret Atwood had made this argument abundantly and terrifyingly clear some 35 years ago, when her novel first came out, and the series hammers convincingly at the same point: that it’s easy to deprive other women of their sexual and reproductive autonomy when one’s own isn’t at stake.

I wouldn’t be writing about The Handmaid’s Tale series if friends of mine, particularly those living in the US, had not recently began making references to it. “Under his eye,” and “Praise be,” are phrases that are popping up now with some regularity. Some are reacting to Judge Barrett’s nomination, and to the fact that she is member of a lay-led Catholic religious group, whose official name just happens to be People of Praise. According a Washington Post article that was published in 2018 and that was recently updated, there are People of Praise groups across the USA, and some operate schools. Michelle Boorstein and Julie Zauzmer, the article’s authors, indicate that the while it’s difficult to determine with any certainty how these so-called charismatic Catholic groups function or what influence they might exert over their members, the groups are generally known to be “conservative, authoritarian and patriarchal.” When they inquired with Craig Lent, People of Praise’s overall coordinator, about members’ views on abortion and gender, “he said they believe that life begins at conception, and that men are the leaders of the home.”[vi]

There is a lot more that raises concern in the article, yet the real problem, and one that should be setting off reverberative sirens, goes far beyond Judge Barrett’s membership in a dogmatic Christian organization. One needs only to look at the website belonging to the U.S. Department of State, and the remarks it posted on September 20, which were occasioned by Secretary of State, Michael R. Pompeo’s visit to Pastor Jack Graham’s Prestonwood Baptist Church in Plano, Texas. Even a cursory examination of the remarks, which come under the heading, “Keeping Faith in the Public Square,” should give pause to any American who is familiar with the first amendment to the US Constitution. The amendment, which concerns itself with the separation of church and state is worded as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thomas Jefferson also famously spoke of “building a wall of separation” between Church and State, thus ensuring that not a single American citizen would be forced to take up religion against their will, or be prevented from practicing their own chosen faith. Why, then, do Pompeo and Pastor Graham insist over and over in their remarks—in statements which now appear on  the official website of the U.S. Department of State—that  faith doesn’t just belong  in the public square, but that the founding fathers had never intended otherwise. Pompeo, it seems, is bent on recasting history: “And I believe deeply, …that faith in the public square is not only lawful, but righteous. That faith is not only powerful but required by the American tradition….[W]e need to return to the founders’ central understandings about faith…and we must stand with it and we can’t let anybody try and rewrite history to suggest otherwise.”[vii]

The purpose of this piece is not to discredit religion. Any person who chooses to, should be able to turn to religion. I do believe that religion and religious organizations—whichever faith is being practiced—play a vital role in giving people a sense of community, succour, continuity, and in encouraging tolerance, respect, and inclusivity. Nor would I ever attempt to diminish the gravity of any decision that pertains to the termination of a pregnancy, even one in the early stages. As far as I can see, The Handmaid’s Tale series does give due regard to religious faith, as well as maternal love, and its resilience. Neither does it fail to argue that any insistence on the sanctity of human life, especially when it is supported by scripture, is profoundly at odds with all of the ways individual freedoms are expunged in Gilead. An episode in which we see countless cages crowded with women captured and held there after Gilead defeats the holdout portions of Chicago, is no subtle reminder that a pro-life position makes little sense when migrant children who are separated from their parents are routinely held in cages in American border facilities.

This is also not meant as a review of the series The Handmaid’s Tale, although I do think that it does a superb job, intellectually and artistically, of representing Atwood’s novel and its message, and of extending and enlarging upon the trajectories suggested there. A number of good reviews have been written. These can be found without too much difficulty. I would, however, like to outline briefly what are for me some of the main takeaways from the series. They are as follows: The red colour of the uniforms the handmaids are forced to wear, and which makes the women and their purpose easily identifiable, is also intended as a mark of their former iniquity or fall from grace from which their status as handmaids is said to redeem them. The colour red, then, is a signal of these womens’ inferiority, and as such, it functions like the scarlet letter of Nathaniel Hawthorne’s eponymously named novel: as dubious but effective means of ‘othering’ these women, and justifying their oppression on moral grounds. Moreover, as Hawthorne saw, and took pains to demonstrate by describing the moral hypocrisy of the Puritan community he wrote about, neither the presence nor absence of the scarlet letter—nor of any other distinguishing mark—is guarantee of virtue or the absence thereof. Atwood’s novel and the series make the same point with Jezebel’s, the unofficial brothel, whose function is to enable the senior members of Gilead’s religious regime let loose. On these very same grounds, we might conclude that we should never tolerate the use of scripture as an instrument of power—political, social, or juridicial—over others. Finally, and my favourite part of the series’ third season, is what we learn about the women who are employed as housekeepers, the “Marthas.” They have been collaborating, creating a network to undermine Gilead’s regime all along, and they have done so with awe-inspiring courage and resourcefulness. Justice Ginsburg’s life’s work is an example of the same. Women’s empathy, sense of justice, and their strength to resist oppression should not be underestimated, especially not when they’re forced to step up and intervene to ensure a better future for their children and for one another.

[i]McGrath, M., and Sandler, R. (2019, September 20). Ruth Bader Ginsburg’s Indelible Mark On American Business. Forbes. Retrieved from: https://www.forbes.com/sites/maggiemcgrath/2020/09/20/ruth-bader-ginsburgs-indelible-mark-on-american-business/#16c603215c75).

See also: Spiggle, Tom (2019, March 13). Eight Laws That Helped Women Make History In The Workforce. Forbes. Retrieved from: https://www.forbes.com/sites/tomspiggle/2019/03/13/8-laws-that-helped-women-make-history-in-the-workforce/#64c51fe717b5

Note that Justice Ginsburg helped draft the Pregnancy Discrimination Act, and, as a Supreme Court judge, wrote an influential dissenting opinion in Coleman v. Court of Appeals of Maryland to assist in making the Family and Medical Leave Act (FMLA) less prone to being instrumentalized by employers in gender discriminatory hiring decisions.

[ii]Goldmacher, S., and Glueckhttps, K. (2020, September 26). Democrats want to avoid personal attackes on Barrett. The New York Times. Retrieved from: http://www.nytimes.com/live/2020/09/26/us/trump-vs-biden/democrats-want-to-avoid-personal-attacks-on-barrett

[iii]Smith, K. (2020, September 26). What we know about Amy Coney Barrett’s Judicial Abortion Record. CBS News. Retrieved from: https://www.cbsnews.com/news/amy-coney-barrett-views-postion-abortion-cases/.

[iv]Liptak, A. (2020, September 26). Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right. The New York Times. Retrieved from:  https://www.nytimes.com/2020/09/26/us/amy-coney-barrett-views-abortion-health-care.html?auth=login-facebook).

[v]Gordon, M., and Hurt, A. (2019, June 5). Early Abortion Bans: Which States Have Passed Them. Retrieved from:  https://www.npr.org/sections/health-shots/2019/06/05/729753903/early-abortion-bans-which-states-have-passed-them.

[vi]Boorstein, M., and Zauzmer, J. (2020, September 28). The Story Behind Amy Coney Barrett’s little known Christian group People of Praise. Washington Post.  https://www.washingtonpost.com/religion/2020/09/28/people-of-praise-amy-coney-barrett/

[vii]U.S. Department of State website (2020, September 20). Keeping Faith in the Public Square. Retrieved from: https://www.state.gov/keeping-faith-in-the-public-square/?fbclid=IwAR1LSO06h5YrzqUOS-_NSpv714sNnkDfRK88K6aOC2xvMUJBb5keBc1vcoQ

More reading:

Reed v. Reed, 404 U.S. 71 (November 22, 1971), available at https://www.law.cornell.edu/supremecourt/text/404/71;

and Frontiero v. Richardson, 411 U.S. 677 (May 14, 1973), available at https://www.law.cornell.edu/supremecourt/text/411/677.

Ginsburg, R. B. (1979). Sexual Equality Under the Fourteenth and Equal Rights Amendments. Washington University Law Review 1 (1979): 161–178, available at https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2509&context=law_lawreview.

Bleiweis, R. (2020, January 29). The Equal Rights Amendment: What You Need to Know. Centre for American Progress. Retrieved from: https://www.americanprogress.org/issues/women/reports/2020/01/29/479917/equal-rights-amendment-need-know/

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Olga Stein holds a PhD in English, and is a university and college instructor. She has taught writing, communications, modern and contemporary Canadian and American literature. Her research focuses on the sociology of literary prizes. A manuscript of her book, The Scotiabank Giller Prize: How Canadian is now with Wilfrid Laurier University Press. Stein is working on her next book, tentatively titled, Wordly Fiction: Literary Transnationalism in Canada. Before embarking on a PhD, Stein served as the chief editor of the literary review magazine, Books in Canada, and from 2001 to 2008 managed the amazon.com-Books in Canada First Novel Award (now administered by Walrus magazine). Stein herself contributed some 150 reviews, 60 editorials, and numerous author interviews to Books in Canada (the online version is available at http://www.booksincanada.com). A literary editor and academic, Stein has relationships with writers and scholars from diverse communities across Canada, as well as in the US. Stein is interested in World Literature, and authors who address the concerns that are now central to this literary category: the plight of migrants, exiles, and the displaced, and the ‘unbelonging’ of Indigenous peoples and immigrants. More specifically, Stein is interested in literary dissidents, and the voices of dissent, those who challenge the current political, social, and economic status quo. Stein is the editor of the memoir, Playing Under The Gun: An Athlete’s Tale of Survival in 1970s Chile by Hernán E. Humaña.

Olga Stein is WordCity Monthly’s Contributing Editor of Non-fiction.

Published by darcie friesen hossack

Darcie Friesen Hossack is a graduate of the Humber School for Writers. Her short story collection, Mennonites Don’t Dance, was a runner-up for the Danuta Gleed Award, shortlisted for the Commonwealth Writers Prize and the Ontario Library Association's Forest of Reading Evergreen Award for Adult Fiction. Citing irreverence, the book was banned by the LaCrete Public Library in Northern Alberta. Having mentored with Giller finalists Sandra Birdsell (The Russlander) and Gail Anderson Dargatz (Spawning Grounds, The Cure for Death by Lightening), Darcie's first novel, Stillwater, will be released in the spring of 2023. Darcie is also a four time judge of the Whistler Independent Book Awards, and a career food writer. She lives in Northern Alberta, Canada, with her husband, international award-winning chef, Dean Hossack.

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