The overturning of Roe v. Wade has put Ruth Bader Ginsburg’s name on the lips of plenty of people — and on both sides.
On the right, Ginsburg has served an entirely different purpose: as a supposed vindicator of what the Supreme Court just did. Plenty have pointed to Ginsburg’s past criticisms of Roe to suggest that even she might have agreed with the present-day Supreme Court that the case was wrongly decided in the first place — and even that the issue should be left by the states.
“I think that Ruth Bader Ginsburg would agree in that regard,” Fox News host Tammy Bruce said Friday.
“Even she agreed women ought to have the right to control their body [but] Roe was decided wrong from a Constitution standpoint,” Sen. Charles E. Grassley (R-Iowa) said.
Fox News host Tammy Bruce says "the average American benefits" from the overturning of Roe v. Wade because it "brings it back to the core of what the people want," adding that "I think that Ruth Bader Ginsburg would agree in that regard." pic.twitter.com/vxCidX5VRo— Justin Baragona (@justinbaragona) June 24, 2022
There’s no question Ginsburg disagreed with how Roe was decided. But it’s hardly that simple.
Indeed Ginsburg’s criticisms of Roe generally had to do with pragmatic and political concerns, rather than saying it was outright wrong. And far from wanting to leave this decision to the states, as Friday’s decision does, she repeatedly sided with the idea that abortion was a constitutional right. She had preferred that right to be phased in more gradually and that it rely more on a different part of the Constitution — the right to equal protection rather than the right to privacy, the basis of Roe.
Ginsburg’s Roe commentary gave some on the left pause during her 1993 confirmation hearings. She was nominated two decades after Roe and one year after it was affirmed in Planned Parenthood v. Casey. And some worried she would be insufficiently supportive of that precedent.
Shortly before her nomination, Ginsburg had criticized how Roe was handled in a speech at New York University. She contrasted Roe — a decision she labeled “breathtaking” — with how the court had handled similar cases in a more restrained way around the same time, suggesting the latter was the order of the day.
“A less-encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day,” she said, “might have served to reduce rather than to fuel controversy.”
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 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.” That movement for legislative change ran parallel to another law revision effort then underway-the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s.No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
Indeed, Ginsburg regularly said that Roe might have harmed the evolution of abortion rights by going too far, too fast. She argued support for abortion rights was already increasing, but that the court with its one fell swoop altered that trajectory and created a more polarized environment.
Ginsburg’s other main problem with Roe was that it was based upon the right to privacy rather than the right to equal protection — she felt the latter would have left it more insulated from challenges. Ginsburg herself had worked on such a case around the time Roe was decided, but it was ultimately dismissed as moot when the military changed the relevant policy. In nominating Ginsburg, President Bill Clinton called her thoughts on this matter a “very provocative and impressive argument.”
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said in a 2013 event at the University of Chicago. “It’s about the doctor’s freedom to practice. … It wasn’t woman-centered, it was physician-centered.”
Ginsburg united these criticisms as early as 1984, saying in a speech at the University of North Carolina that Roe “ventured too far in the change it ordered and presented an incomplete justification for its action.”
One thing you’ll notice from the above is that Ginsburg calls the court’s decision hasty and “breathtaking,” she suggests it would have been better to go slower and focus on equal protection, and she laments legislators being taken out of the process so quickly and absolutely. But what she doesn’t say is that there is no constitutional right to an abortion or that Roe was wrong. Indeed her comments take issue mostly in how it arrived at a conclusion she supported, and how sustainable it made that right.
And Ginsburg assured in her 1993 confirmation hearings that she did support it being a right.
Abortion “is something central to a woman’s life, to her dignity,” she said. “It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
As Joan Biskupic wrote for The Washington Post back then, this answer was newsworthy given the misgivings on the left over her nomination, but also “consistent with her earlier writings.”
And as the New York Times wrote even before Ginsburg allayed the left’s fears:
The difference is not over the ultimate goal of a right to abortion fully anchored in the Constitution and secure against political undermining. Rather, Judge Ginsburg’s lecture reflects a long-running debate about whether that goal could have been better achieved by another route, as a matter both of constitutional doctrine and judicial strategy, and over what lessons to draw from the tortuous history of abortion rights in the 20 years since Roe v. Wade was decided.
Which is the point. It’s true Ginsburg’s past comments on Roe might come as a surprise to people who have come to regard her as one of the court’s preeminent liberal icons. But there’s a difference between taking issue with how Roe was decided from a strategic standpoint and saying it was wrongly decided — much less agreeing with what the Supreme Court did last week.