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The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade

In a 2014 interview, Justice Ruth Bader Ginsburg talks about how she thinks Roe v. Wade should have been decided differently. (Video: The International Women’s Health Coalition)

Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors.

With her valedictory on the court undetermined but within sight, Ginsburg, 82, may have only one more chance to leave a mark on reproductive rights. It comes in the most consequential abortion case during her time on the court

Supreme Court hearing arguments on Texas abortion-clinics case

The court on Wednesday is reviewing a Texas law that put new requirements on doctors and tougher regulations on abortion clinics in the name of patient safety. Abortion providers say the restrictions are unnecessary, in some cases impossible to satisfy and would reduce the number of clinics in the state from more than 40 to about 10.

The providers’ strategy for defeating the restrictions depends in part on Ginsburg’s uniting the court’s three other liberals to find that Texas erected an unconstitutional obstacle to a woman’s right to choose to terminate a pregnancy.

At Georgetown University in February 2015, Justice Ruth Bader Ginsburg spoke about the socio-economic implications of overturning Roe v. Wade. (Video: CSPAN, Photo: Tracy A. Woodward/CSPAN)

With her leadership on the issue pivotal, it is difficult to remember that 23 years ago Ginsburg was considered suspect on the issue.

Some women's groups questioned President Bill Clinton's choice of Ginsburg for the Supreme Court because she had criticized the legal foundations of the court's landmark 1973 decision in Roe v. Wade . She added that its wholesale repudiation of state abortion restrictions went too far, too fast.

No less than Kate Michelman, then head of the National Abortion Rights Action League, was worried. "Her criticisms of Roe raise concerns about whether she believes that the right to choose is a fundamental right or a lesser right," Michelman said.

If the questions about Ginsburg’s reliability on the issue have been put to rest, still open to debate is what impact she had made on the court’s jurisprudence.

The lawyers in the case are making their arguments to an audience of one — and it is not Ginsburg.

Arguments in Supreme Court abortion case pitched to audience of one

Justice Anthony M. Kennedy, as in so many other issues, is the decider. Before him, it was Justice Sandra Day O’Connor. And it is likely that Ginsburg will end her long run on the court with only a limited influence on the issue with which she is most identified.

“Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished,” said Richard Fallon, a Harvard law professor who studies the court.

So far, Ginsburg's most meaningful statement on abortion rights during her time on the court came in a scathing dissent she wrote in 2007, when the court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act, which outlawed a late-term abortion procedure.

It was the first time the court had ever agreed that doctors could not use a specific abortion method and the first time the justices ratified a restriction that did not include an exception for the health of a woman.

“In candor,” Ginsburg wrote, “the Act, and the court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this court — and with increasing comprehension of its centrality to women’s lives.”

Ginsburg was incensed by an assertion in Kennedy’s majority opinion that said it was “self-evident” that women who had abortions through such a method could come to regret their choice and, consequently, suffer from “severe depression and loss of esteem.”

Ginsburg answered: “The court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”

That is indicative of Ginsburg's view that the Roe decision was wrongly grounded in a constitutional right to privacy.

The finding in Roe, she has said, is based on "the woman in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him."

Sonja West, a constitutional law professor at the University of Georgia, said Ginsburg’s view is that women must be autonomous.

“The key to understanding Justice Ginsburg’s views on the constitutional right to abortion is that she sees it as a question of equal protection and not of privacy,” West said.

“She has said on many occasions that for women to attain true equality with men, they must have sole control over their fertility. This control, in Justice Ginsburg’s view, is tied to a woman’s ability to be independent, which is in turn tied to her status as an equal citizen.”

That was the position that even Clinton termed “very provocative” when nominating Ginsburg to the high court in 1993.

But in truth, the court already had moved closer to Ginsburg's view. The year before, in Planned Parenthood v. Casey , the court affirmed the Roe decision. But it also found that a pregnant woman's "suffering is too intimate and personal for the state to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the court of our history and our culture."

Likewise, it found, “the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”

That was why Ginsburg reacted so sharply to Kennedy’s language in the partial-birth abortion case, West said.

“She saw a group of powerful men putting their views about what was the best or most moral choice for women over the views of the women,” she said. “And that they did so at the risk of the women’s safety, by not including an exception for the health of the woman, made it all the more upsetting to her.”

It is how Ginsburg has expressed herself outside the courtroom that has drawn the ire of abortion opponents.

"The side that wants to take the choice away from women and give it to the state, they're fighting a losing battle," Ginsburg told Emily Bazelon in a 2009 interview for the New York Times Magazine. "Time is on the side of change."

And conservatives initially said Ginsburg should recuse herself from the Texas case because of comments she made in a 2014 New Republic interview. Asked if states could be entrusted to guard abortion rights, she answered: "How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can't be trusted either."

One thing that is unknowable about Ginsburg’s influence is if, and how, she has affected her colleagues behind the scenes. But what will become clear from Wednesday’s questioning is her strategy — and that of her colleagues on the right — to attract Kennedy’s vote.