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Justice Ginsburg thought Roe was the wrong case to settle abortion issue

Justices Ruth Bader Ginsburg and Stephen G. Breyer during a Supreme Court ceremony in 2006. (Gerald Herbert/AP)

The Supreme Court probably wouldn’t have the votes to overturn the right to abortion in Roe v. Wade, as a leaked draft opinion proposes, if Justice Ruth Bader Ginsburg were still on the court. But Ginsburg was not a fan of the reasoning behind the 1973 ruling.

Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.

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Ginsburg actually didn’t think Roe was the best case for establishing abortion rights. She would have preferred a case she worked on as a lawyer for the American Civil Liberties Union in the early 1970s.

In that case, Ginsburg represented an Air Force captain who became pregnant while serving as a nurse in Vietnam. In a twist, Ginsburg championed the woman’s right not to have an abortion; an Air Force rule at the time dictated that pregnant women had to terminate their pregnancies or be discharged.

Ginsburg challenged the rule on behalf of the woman, Susan Struck, in a case called Struck v. Secretary of Defense and won a stay preventing Struck’s discharge while the courts reviewed the case. In December 1972, two years after Struck gave birth to a baby and shortly after the Supreme Court agreed to hear the suit, the military changed the policy and let Struck remain on active duty.

The court agreed to drop the case as moot. The following month, it issued its Roe v. Wade ruling.

“The idea was: ‘Government, stay out of this,’ ” Ginsburg said of the Air Force case at a University of Chicago Law School conversation on the 40th anniversary of Roe in 2013. “I wish that would have been the first case. The court would have better understood this is a question of a woman’s choice.”

Roe v. Wade, which challenged a Texas law that banned abortions except to save the mother’s life, invalidated all state laws that prohibited abortion and established a constitutional right to the procedure. At the law school event, Ginsburg argued that the court should have deemed the Texas law unconstitutional without such a sweeping ruling.

That would have led to a gradual relaxation of abortion bans on a state-by-state basis, she said, and advanced the democratic process.

“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said, adding that the decision gave “opponents a target to aim at relentlessly.”

Geoffrey R. Stone, a professor and former dean of the University of Chicago Law School who conducted the 2013 discussion with Ginsburg, said in an email this week that a main source of her concern about Roe was that it went too far, too fast.

“She felt that a more incremental approach would be less likely to trigger what became the extreme political opposition to Roe,” he said.

Ginsburg made a similar argument in 1992, a few months before President Bill Clinton nominated her to the Supreme Court.

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade,” Ginsburg said at a New York University Law School lecture.

“A less-encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day … might have served to reduce rather than to fuel controversy,” she added.

Over the past 30 years, conservative Supreme Court nominees testified about abortion rights during their Senate confirmation hearings. (Video: JM Rieger/The Washington Post)

From 1971 to 1982, she said, the high court invalidated state and federal laws for violating due process or equal protection principles.

“The Supreme Court wrote modestly, it put forward no grand philosophy; but by requiring legislative reexamination of once-customary sex-based classifications, the court helped to ensure that laws and regulations” would reflect a changing world, she said, according to her prepared remarks.

She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe v. Wade was issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures ‘toward liberalization of abortion statutes.’ ”

Ironically, conservative columnist George F. Will has made a similar argument. In a 2003 column, he wrote that the Supreme Court had tried to end the debate about abortion with its decision in Roe.

“Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy,” he wrote.

“Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.”

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Mary Hartnett, a Georgetown University law professor who is co-authoring an authorized biography of Ginsburg, told the New York Times in 2020 that the justice thought the Supreme Court made a mistake in Roe by relying on the right to privacy. Ginsburg “believed it would have been better to approach it under the Equal Protection Clause,” said Hartnett, who spent 17 years interviewing Ginsburg with her co-author, Georgetown Law professor emerita Wendy Webster Williams.

But ​Stone, the University of Chicago Law School professor, said the Supreme Court didn’t have the votes for that position in 1973. Stone was a clerk for Justice William J. Brennan at the time.

“She was a strong advocate for the position that the Equal Protection Clause should prohibit laws that discriminate against women,” Stone said. “Unfortunately, at the time Roe was decided, we could not get five votes for that position. Thus, there was no way that the Equal Protection Clause could be used at that time to resolve Roe.”

He added that the justices on the court in 1973 — who were all men — “were skeptical of the argument that a law that treated men and women differently because they were biologically different, as in the pregnancy issue, would violate equal protection.”

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