Antiabortion activists are citing an unlikely authority for their arguments that Roe v. Wade is a misguided ruling that deserves to be overturned: Justice Ruth Bader Ginsburg.
Ginsburg’s disagreement with the legal reasoning in Roe is well known: It was an issue at her confirmation hearings in 1993, with some women’s groups expressing concern about her allegiance to abortion rights.
But she answered them clearly, advocating a woman’s right to the procedure while criticizing the decision that guaranteed it. Ginsburg said the right for a woman to end a pregnancy should be found in the Constitution’s promise of equal protection, not a privacy interest the Roe majority asserted.
“It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling,” Ginsburg told the Senate Judiciary Committee. “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
Although Ginsburg continued to express disagreement with Roe’s reasoning and said it had prematurely ended political debate on the issue, she also said she saw overturning it as a “worst-case scenario” for women.
“She was pretty clearly the strongest supporter of abortion rights on the court,” said Mary Ziegler, a law professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present.”
But that, in part, explains the appeal of the even-Justice-Ginsburg references.
Mississippi, which is defending a law that would ban most abortions after 15 weeks, is asking the court to overturn 1973’s Roe and a 1992 decision in Planned Parenthood v. Casey that reaffirmed a woman’s right to terminate a pregnancy before viability.
Attorney General Lynn Fitch (R) cites Ginsburg in the introduction of her brief.
“Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse,” Fitch wrote, citing as an authority a law review article Ginsburg wrote in 1985.
The article, titled “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” and a subsequent speech about the role of the judiciary provide Ginsburg’s most detailed critiques of Roe and are cited throughout the briefs.
Ginsburg disagreed with the Roe majority’s foundational finding that the right to abortion was based on the privacy of a woman’s decisionmaking with her doctor. Additionally, she felt the court went too far in 1973 in setting standards for the entire country, rather than simply striking down a Texas law she said “intolerably shackled a woman’s autonomy.”
She blamed the court’s “breathtaking” decision for short-circuiting the debate about abortion rights, which she believed would have evolved into protection for abortion rights by the political branches.
The Becket Fund for Religious Liberty said in its amicus brief on Mississippi’s behalf that “Roe and Casey function as a mechanism for generating conflicts across many areas of religious life” and “thus proves the truth of Justice Ginsburg’s observation that ‘[h]eavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.’ ”
Also widely quoted is Ginsburg’s assertion in a 1992 speech: “Doctrinal limbs too swiftly shaped . . . may prove unstable.” The most prominent example, she said, was Roe.
Ziegler said it is natural that those urging a reversal of Roe would cite Ginsburg’s doubts about the decision. It is an attempt to reassure the justices that “criticizing Roe is not a partisan thing, not a pro-life thing — it’s a universal thing.”
The message, she said, is directed at key conservative justices, such as Brett M. Kavanaugh, who might be “a little hesitant to pull the trigger on overruling Roe.”
The obvious rejoinder, Ziegler and others said, is that Ginsburg would never have joined such an effort.
“Roe v. Wade, I should be very clear — I think the result was absolutely right,” Ginsburg said in a 2018 interview with law professor Jeffrey Rosen, recounted in his book “Conversations with RBG.”
“My idea of how choice should have developed was not a privacy notion, not a doctor’s right notion, but a woman’s right to control her own destiny, to be able to make choices without a Big Brother state telling her what she can and cannot do,” she said.
Rosen, president and chief executive of the National Constitution Center, said in an interview that Ginsburg was particularly worried that a system in which some states protect abortion and others ban it would disadvantage poor women, who could not afford to travel.
“She felt women of means would remain able to obtain abortions, but it would have disturbing effects on poor women,” Rosen said.
In one of their conversations, she confronted the idea that abortion rights should be left to the states. “How could you trust legislatures in view of the restrictions states are imposing?” she asked. “Think of the Texas legislation that would put most clinics out of business.”
The briefs from abortion opponents that mention Ginsburg are a sign of the justice’s prominence on the issue. (The briefs from the Jackson, Miss., clinic at the center of the legal fight and its supporters are not due until next month.)
Some note Ginsburg’s dissents accusing her colleagues of chipping away at abortion rights as a directional move that should be embraced. Others take issue with the assertion in Casey, embraced by Ginsburg, that abortion is key to women’s equality, especially in paving the way for economic success and career opportunity.
“There simply is no causal link between the availability of abortion and the capacity of women to act in society,” says a brief filed by “240 women scholars and professionals, and prolife feminist organizations.”
That the question of overturning Roe has become so central to the case is probably due to Ginsburg’s death.
When Mississippi asked the court in 2020 to review the lower court decisions that struck down the 15-week restriction, the state was modest in its request. “To be clear, the questions presented in this petition do not require the court to overturn Roe or Casey,” Fitch’s petition to the court said.
But after Ginsburg’s death, she was replaced by Amy Coney Barrett, who has expressed personal opposition to abortion and as a law professor sharply criticized the Roe ruling.
Ziegler finds it hard to believe the briefs would make so much of Ginsburg’s early opposition to Roe if the justice were still alive.
“No, absolutely not,” Ziegler said. “Can you imagine the dissent she would write?”