The Supreme Court released a statement saying Ginsburg was taken to Washington Hospital Center at 7:45 p.m. after she "developed lightheadedness and fatigue" while working, according to the Associated Press. She had received an iron sucrose infusion earlier in the day to treat an iron deficiency. Doctors found she had slightly low blood pressure, which sometimes occurs after the treatment, and decided to keep her overnight.

After an examination in July doctors determined that she was in good health, but had "a low red blood cell count caused by deficiency of iron," which is a common side effect of chemotherapy for pancreatic cancer. On February 5, a small malignant growth was removed from Ginsburg's pancreas along with her spleen, but doctors found the cancer hadn't spread.

Ginsburg hasn't missed a day of work since the operation and has said she wants to match the tenure of Justice Louis Brandeis, who served for more than two decades and retired at the age of 82.

Justice Ginsburg Hospitalized; Became Ill At Work [Associated Press]

Ginsburg first noted two levels of concern with the Supreme Court's abortion rulings. The first was that the "undue hardship" provisions disproportionately affect economically disadvantaged women by limiting their access.

There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don't know why this hasn't been said more often.

The second was that Roe itself (and many of the other rulings and laws) are inherently paternalistic. She said:

It will be, it should be, that this is a woman's decision. It's entirely appropriate to say it has to be an informed decision, but that doesn't mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.

And this:

The poor little woman [in Kennedy's opinion on the partial birth abortion case], to regret the choice that she made. Unfortunately there is something of that in Roe. It's not about the women alone. It's the women in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him.

Both of which are interesting analyses of who the anti-abortion movement is preventing from exercising their constitutional rights and why the ways in which the Court and lawmakers view women when it comes to abortion are inherently paternalistic and condescending.

In the context of the statement that the "undue hardship" test is actually systematically disadvantaging poor women, Emily Bazelon asked Ginsburg about the Hyde Amendment, which was originally passed in 1976 (3 years after the Supreme Court ruled in favor of the plaintiffs in Roe v. Wade) and which originally prohibited Medicaid recipients (poor women) from being able to use their government health insurance to pay for abortion services at all — it was later modified to make exceptions for the life of the mother or women whose pregnancies were the result of rape or incest. As we know now, the end result is that one in four Medicaid recipients is compelled to carry an unwanted pregnancy to term because of the law, while others delay their abortions at further risk to themselves.

The Hyde Amendment was the subject of a federal lawsuit brought by Norma McRae, a pregnant New York Medicaid recipien. In a 1980 Supreme Court decision in Harris v. McRae — before Ginsburg was a judge — ruled that the federal government had no obligation to fund abortions for women on Medicaid. The opinion, given by Justice Potter Stewart said, in part that the Court's decision in Roe v. Wade did not confer on McRae (or anyone else) "a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."

In response to Bazelon's question, Ginsburg cites Harris v. McRae, and says she found the decision surprising, but not for the reasons one might assume.

Yes, the ruling about that surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

This is, obviously, been the subject of some misreading.

I asked Emily Bazelon about it, and she said:

The main thing I'd say about this is that it was clear that when Justice Ginsburg said "we," when she was talking about populations that we don't want to have too many of (you can get the exact quote from the piece), she meant some people in the world, not herself or a group that she feels a part of. That's not how she sees the world, as you I'm sure know. Her point was about other people's conception of who they thought should be encouraged to have children and who shouldn't be, not her own.

In other words, Bazelon is saying the we should have been in quotes, like this:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that "we" don't want to have too many of.

This, of course, hasn't stopped any right-wingers from assuming that Ginsburg was admitting the pro-choice movement was all about eugenics or others who were convinced that her use of the word "we" was something more nefarious than a reference to "some people."

The reproductive choice movement — and particularly Planned Parenthood — is often derided by the anti-abortion movement as nothing more than a cover for eugenics, due in no small part to founder Margaret Sanger's well-publicized written works on the subject. While her conception of eugenics wasn't inherently race-based, it was very much economic-based — which, of course, had strong and has strong correlations to race in this country. Sanger's commitment to eugenics, regardless of whether it was a deeply-held belief or a political tactic to gain support for a movement that was struggling for oxygen and legitimacy, left a stain on the reproductive choice movement it was yet to fully expunge.

And that stain isn't visible only to conservatives. Feminists from Germaine Greer to Linda Gordon to Betsy Hartmann to Andrea Smith (and beyond) have been openly critical of Planned Parenthood's roots and as suspicious of some of its activities — like trying to get the government to pay for poor women's abortions, feeling that whether one can afford the procedure and whether one can afford the child are equally economically coercive, and a government which provides abortions for poor women but not economic assistance for pregnant ones isn't necessarily the best thing, either. There were feminists — radical feminists, in particular, and feminists of color — who wondered aloud whether a group like Planned Parenthood, with its sordid roots in the eugenics movement, should be pushing for more abortions for poor women, and why they were.

So when Ginsburg said "we," she could have been talking about the Republican establishment in the 1970s — although, as she noted in her interview, it was the Nixon Administration that first set about enforcing affirmative action laws — or she could have been noting that there were plenty of feminists in the 70s worried that the abortion-rights movement wasn't necessarily compatible with the larger aims of a social movement for equality.

That argument, if you ask anti-abortion feminists, is still ongoing.

The Place of Women on the Court [New York Times]

Related: Ginsburg: I Thought Roe Was To Rid Undesirables [World Net Daily]
Hyde Amendment [Wikipedia]
Harris v. McRae [Wikipedia]
Restricting on Medicaid Funding for Abortions Forces One In Four Poor Women To Carry Pregnancy To Term [Guttmacher Institute]
People & Events: Eugenics and Birth Control [PBS]
The Ethic of Control: Margaret Sanger, Eugenics, and Planned Parenthood [Inside Catholic]
Sex and Destiny: The Politics of Human Fertility [Amazon]
A Companion To American Women's History [Google Books]
Battleground [Google Books]
Conquest [Google Books]

Earlier: Awesome, Honorable Ruth Bader Ginsburg Explains It All To You

According to the New York Times, she first tackled the "problem" — cited by Chief Justice John Roberts at his confirmation hearing — that some justices use rulings from foreign judges when writing opinions. Reports the Times:

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Apparently, someone forgot to tell her that America is the repository of all wisdom ever.

She also spoke about why it is that it's only in the last 50 years that many other countries instituted judiciaries that have the power to strike down legislation that makes it though the Democratic process.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Values, like, say, not torturing people and the importance of judicial process? It's a good warning that sometimes elected officials might use the legislative process to subvert that, I mean, we wouldn't want that to happen here.

She covered that, too:

"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.' "

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

"Because you're an American," is probably the answer to that.

Ginsburg also discussed her role in creating the term "gender discrimination," which is a forehead-slapper if I ever heard one.

She helped introduce the term "gender discrimination" as a synonym for "sex discrimination," she said, explaining that her secretary had proposed the idea while typing a brief to be submitted to male judges.

" ‘The first association of those men with the word "sex" is not what you're talking about,' " the secretary said, Justice Ginsburg recalled. " ‘Why don't you use a grammar-book term? Use gender. It has a neutral sound, and it will ward off distracting associations.' "

The Washington Post pointed out that is was in one of the most famous gender discrimination cases of late — the Lilly Ledbetter pay discrimination case — that Ginsburg threw up what she terms "a red flag."

Ginsburg, unlike some of her colleagues, often makes her case in public speeches. And, when she thinks her colleagues have misinterpreted a statute, she writes a dissent that on Friday she called a "red flag," essentially asking Congress to take action.

Her dissent in the court's 2007 decision that threw out an Alabama tire company manager's suit alleging discriminatory pay made Lilly Ledbetter a heroine on the left and led Congress to change the law, presenting Obama with his first major bill to sign.

In other words, she doesn't hide behind her robes.

Of course, she had trouble hiding behind her robes just a little bit.

"Now, there I am all alone, and it doesn't look right," Ginsburg said. She said she watches the number of women at each session of the Supreme Court bar, notices that four of the nine members of Canada's Supreme Court are women, including the chief justice, and sees the female reporters who cover the court.

"It's lonely for me. Not that I don't love all my colleagues. I do," Ginsburg said.

I guess we need just a little thought about gender discrimination on the court in addition to at the court.

Dahlia Lithwick, writing for Slate, thinks we need both.

But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, the researchers examined whether male and female judges decide cases differently, and went on to look at whether the presence of a female on a panel of judges affects the behavior of her male colleagues.

Here's what they found: The male judges were 10 percent more likely to rule against alleged sex-discrimination victims. And male judges were "significantly more likely" to rule in their favor if a woman judge served on their panel.

And, Lithwick points out, it's not just conservatives, either.

History proves that you can be the most empathetic, open-minded, and sensitive jurist in all the world-and still be a complete dolt about gender. It's why liberal lion William Brennan could write so expansively about equality and fairness and justice while still refusing to hire female law clerks. It's why Ginsburg was denied a clerkship with the legendary judge Learned Hand. (He refused to hire her because he liked to use salty language.)

Oh, fuck that noise.

Lithwick finally points out that, if and when Obama does have an opportunity to appoint a Supreme Court justice, he'll have plenty of women to choose from.

When it comes time for Obama to appoint a new justice, he'll have an embarrassment of female talent to choose from: To name just a very few, potential candidates include appeals court judges like Diane Wood, Sonia Sotomayor, Kim McLane Wardlaw; his new solicitor general, Elena Kagan; gifted academics such as Stanford Law School's Kathleen Sullivan and Pamela Karlan; Michigan Gov. Jennifer Granholm; and private attorneys like Teresa Wynn Roseborough.

An embarrassment, that is, because Ginsburg is currently the sole woman on the Court despite that kind of legal talent on both sides of the aisle.

Ginsburg Shares Views On Influence Of Foreign Law On Her Court, And Vice Versa [NY Times]
Ginsburg Gives No Hint Of Giving Up The Bench [Washington Post]
The Fairer Sex [Slate]

As a result of that patent unfairness, the Lilly Ledbetter Fair Pay Act was put before the Senate yesterday. And it was voted down, 56-42. By a Republican filibuster. And John McCain didn't even bother to show up to vote.

The Ledbetter Act would have allowed people more than 180 days to file claims against their employers, and, according to U.S. News and World Report, "It would have each discriminatory paycheck trigger a new claim-filing period, that is, another 180-day window in which to file a case with the Equal Employment Opportunity Commission." McCain, however, is against it because, according to the Daily Kos, McCain is "all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems...This is government playing a much, much greater role in the business of a private enterprise system."

As Kos points out, "Pay discrimination is already illegal. This legislation would have fixed a bad [Supreme Court] decision that severely limited the ability of workers to hold their employers accountable for breaking the law." Both Obama and Clinton voted in favor of the Ledbetter Act.

The fact that this Act was voted down in the first place makes me want to vomit, but it's especially depressing if you read Ruth Bader Ginsberg's dissenting opinion in the Supreme Court case. Ginsberg, of course, was one of four judges who voted in favor of Ledbetter, and she wrote, "The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women...And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised...Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the 'plant did not need women, that [women] didn't help it, [and] caused problems.'"

What the fuck. On a micro level, Lilly Ledbetter got completely fucked over. On a macro one, Republicans don't give a shit about anyone but CEOs. I'm just as baffled about this as Nevada Senator Harry Reid, who said, "I don't know how anyone would oppose something like this. It just makes sense that people should be treated fairly."

Equal Work, Unequal Pay [US News And World Report]
Republicans Defeat Lilly Ledbetter Fair Pay Act [Daily Kos]
Lilly Ledbetter v. The Goodyear Tire And Rubber Company [Cornell]
Equal Pay Isn't A Partisan Issue. Is it? [Time]