RBG, Part II

Last week, I talked about how Justice Ginsberg inspires all of us to live a life of service to others, to look at the greater good and how we can each contribute. Her life demonstrates how one person can do so much to affect the trajectory of culture and I find that to be incredibly inspirational.

Now, today, I want to look at the political and judicial ramifications of her death. As always, this post is my own opinion and thoughts and does not mean any more than that. I get that some or many of you who are reading this may not agree with me. Please know that I totally get that and that’s fine. I hope you will read on, ask questions, and think through what I’ve written. For those of you who are in agreement with me, please do read on, ask questions, and think through what I’ve written. Critical thinking is so vital and I think there isn’t enough emphasis on the need to truly examine an issue, understand it, and come to a position rather than simply parroting the positions of others.

I. The first issue I want to raise is the current attack on the Affordable Care Act (a/k/a ACA or Obamacare). There are a lot of nuances about this complicated text that have been made even more so with the various rulings already. What is pending now, as I understand it, is an effort to have the entire law struck down as unconstitutional and the hearing has been set before the Supreme Court before the end of 2020. To strike down the ACA was one of the promises Trump made when he was campaigning and he has followed through on that in a variety of ways, legal and otherwise.

In practical terms, if the ACA is struck down (and without Justice Ginsberg, this becomes more likely), there are ramifications that will affect far more Americans than many realize. I’ll try to explain some of those ramifications the best I can, one by one.

If the ACA is struck down, here’s what would happen:

1. Each person who has insurance through the marketplace would either lose their insurance or the plans would be converted into a private policy. From my experience with walking newly divorced adults through the process of getting individual insurance for many years prior to my diagnosis, that’s a very expensive change and many of those plans may simply not be available any longer. This means there would be millions who would lose their coverage or access to coverage very quickly and many of those people are not in a position to get insurance anywhere else.
2. Pre-existing conditions. Prior to the ACA, how a pre-existing condition (literally a medical (or gender) condition arising prior to an insurance policy’s start date) was treated, was different state by state. Here in Florida, we had the protection of a law that states that if the insured did not have a forty-two (42) day gap in coverage, a new policy could not refuse to cover a pre-existing condition. If the ACA is struck down, then we would revert to the hodgepodge system right as COVID-19 becomes a pre-existing condition. Looking at all the potentially far reaching and lasting consequences to the healthy people who didn’t even get COVID-19 that badly, this could be devastating for millions of people. If an insurance company refuses to cover a cost because of a pre-existing condition, then millions of people would be saddled with even more medical debt in a system where approximately 80% of bankruptcies are filed because of overwhelming medical debt.
3. Lifetime Limits. Prior to the ACA, each insurance company was able to set a maximum amount of money that they would ever be required to pay on behalf of an individual. The idea was to cap their out of pocket exposure for any one person. It makes sense from a business perspective, but let me just say this — the amount of money that has been covered by my insurance company to keep me alive has long passed the average lifetime limit. If the ACA is struck down, then my insurance company would be allowed to no longer cover the treatment and medication that is keeping me alive. This is when it gets personal. Without that coverage, we would be forced to pay all of my out of pocket medical bills, a situation that couldn’t last too long as the cost of my monthly medication exceeds $60,000.0 per month.
4. Coverage for issues unique to women. The ACA protects vital coverage unique to women — birth control, pregnancy, etc. and dovetails with #2 above. For instance, prior to the ACA, insurance companies would consider pregnancy a preexisting condition if it arose during the first year of coverage and wouldn’t extend coverage for the woman or the baby until that time period ended. Yes, I understand that some don’t believe in birth control for religious purposes; at the same time, millions of women are on birth control every month and when I was young and a student, that was a big expense even with insurance.

These are just four (4) of the issues that so many people would have to grapple with if the ACA is struck down as Trump has promised and as is more likely now that Justice Ginsberg’s seat will be filled by Trump with a Justice who will likely be more conservative.

Yeah, I get it, lots of likelies and maybes, but it’s real and it’s a concern and should be taken very seriously.

II. The second issue I would like to raise is the expected and impending attack on Roe v. Wade. Another campaign promise from Trump in order to solidify the pro-life vote. In the simplest terms possible, the ruling of Roe v. Wade protects a woman’s autonomy over her body and protects that same woman’s right to make medical decisions with her doctor without repercussions.

With me so far?

Where the discussion gets sticky is when a baby is conceived and living inside that same woman. Yes, I consider a baby to be a baby from the moment of conception. I believe that baby is an individual person with a soul from the beginning. This isn’t completely based on the science because I don’t think science can explain the soul, but I digress. So, when a baby is living inside a woman and she makes decisions about her body that affect that baby, what then?

Roe v. Wade says, her body, her choice. No governmental interference. That kicks the question to the medical community, perhaps the religious community as well, and there are a variety of issues that arise then. Issues that should not arise since again, it is the woman’s body and her choice what she wants to do with it.

The issue of Roe v. Wade, to me, isn’t about abortion, it isn’t about killing that baby inside that mother, it isn’t about why that baby was conceived or when or how, it’s about choice. It’s about protecting a woman’s autonomy over her body. It’s about not imposing the will of the many or the few on an individual. It’s about keeping private decisions private. It’s about keeping the church and the state separate, a concept embedded in our jurisprudence from the time that the United States of America was just a thought.

Justice Ginsberg, in all of her writing and speaking and decisions, showed us that she believed that women and men should be treated the same, that medical decisions are private, and that the government needed to get out of the way when a private decision needs to be made. She was incredibly consistent on this, whether the man or the woman was the subject of the question. While I do believe that people evolve in their thinking over time, I think consistency is also key about certain issues.

And just a word about terminology — I’ve always hated the pro-life vs. pro-choice false dichotomy. It’s not either/or. I am both pro-life and pro-choice, at the same time. That doesn’t mean I’m pro-abortion, it’s just that I think that that question/dichotomy is the surface. The deeper issue is control. The deeper issue is who gets to make a decision. The deeper issue is the patriarchy and how the patriarchy uses certain methods to control and subjugate women.

Justice Ginsberg got that in a way that I don’t think many women do.

II. Third, while bias is always with us, those jurists who allow their bias to control their jurisprudence are behaving inappropriately.

Ok, I get it, that’s a hard one to understand since there’s been so much misinformation in the media about the role of a judge.

Let me explain it this way — what if two people came to you with a dispute about oranges. There’s a contract that needs to be applied. The issue is whether or not the pale oranges are pale enough to go to one person and the darker oranges would go to the other. And you, the judge says, you shouldn’t have this agreement, I’m taking all the oranges away from you.

It’s not the perfect example, but it’s how a judge obligated to resolve a conflict between two people that is essentially an interpretation of a conflict imposes his or her belief system on two people. This is what activist judges often do. Rather than applying the law to resolve a legal issue, they insert themselves into the equation.

It’s not the perfect example, but it’s how a judge obligated to resolve a conflict between two people that is essentially an interpretation of a conflict imposes his or her belief system on two people. This is what activist judges often do. Rather than applying the law to resolve a legal issue, they insert themselves into the equation.

One of the processes that made law school extremely difficult, but necessary, is the process of changing the way that we think afterwards. We learn to be objective. We learn to put those personal beliefs in the background. We learn to put aside, should. We learn to focus on the box, the limits, the parameters of the law. This was not easy, at all.

We need a jurist on the Supreme Court who doesn’t have an agenda, who is as objective as possible, who looks at the law as a living breathing process to be protected, rather than shaped. This is my fear with a candidate who sees herself a handmaid, as someone beneath or subjugated to anyone else. Jurisprudence is supremely complicated and is so very difficult to describe.

There are probably many other concerns that could be articulated, but those are my top three. Now it’s your turn — do you have concerns about this change in the Court? Are there other ways of looking at these issues? Is there a flaw in my logic? Tell me, I want to know what you all think.