Ruth Bader Ginsburg on the Possibility of Roe v. Wade Being Overturned

The roots of Ruth Bader Ginsburg’s criticisms of Roe can be found in her litigation from the 1970s. Ginsburg first articulated her view that “disadvantageous treatment” on the basis of pregnancy is tantamount to sex discrimination in a 1972 case, Struck v. Secretary of Defense. Ginsburg challenged a regulation requiring all female air force personnel to be discharged as soon as they became pregnant. The regulation, Ginsburg argued, amounted to unconstitutional sex discrimination because it treated pregnancy far more harshly than it treated other temporary disabilities affecting men and women. Because the case became moot, Ginsburg was unable to convince the Court to adopt her view, but she had planted a seed.

Despite her criticisms of the sweep of Roe, Ginsburg never publicly questioned the constitutional foundations of the right to privacy itself. In her Struck brief, she noted that “individual privacy with respect to procreation and intimate personal relations is a right firmly embedded in this nation’s tradition and in the precedents of this Court.” And although Ginsburg criticized Roe for its immoderation, her alternative grounding for abortion rights is potentially more sweeping.

In a 1984 speech at the University of North Carolina she argued explicitly that government has an affirmative duty to fund abortions for poor women. A federal law called the Hyde Amendment, which the Supreme Court upheld in 1980, violated the equality of poor women, she suggested, because it said that the government would subsidize all medically necessary procedures except for abortion. “If the Court had acknowledged a woman’s equality aspect” to reproductive choice, she concluded, “a majority perhaps might have seen the public assistance cases as instances in which, borrowing a phrase from Justice Stevens, the sovereign had violated its ‘duty to govern impartially.'”

Ginsburg’s central premise is that antiabortion laws, like employment discrimination against pregnant women, are based on “stereotypical assumptions” about women as caregivers. Today, pro-choice scholars, advocates, and citizens, including millions of young women, have embraced her emphasis on equality, rather than privacy, as the soundest constitutional foundation for the right to choose.

Moreover, Ginsburg’s prediction that the Supreme Court would chip away at Roe proved to be well founded. As she put it in her Madison Lecture, “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” The first sign of the retreat came in the 2007 case Gonzales v. Carhart, where the Supreme Court, in a five-to-four opinion written by Justice Kennedy, upheld the 2003 federal ban on what were called “partial birth abortions.” Ginsburg wrote a blistering dissent, calling Kennedy’s decision “alarming” and criticizing in particular his claim that it was “self-evident” that women who had abortions might come to regret their decisions. “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,” Ginsburg wrote.

She never forgot Kennedy’s vote; when I wrote in The New Republic in 2011 that Kennedy “votes with the liberals on laws restricting abortion and gay rights,” she wrote to me objecting: “You may be accurate (so far) about gay rights, but what of Gonzales v. Carhart, and before that, Stenberg v. Carhart,” where Kennedy dissented from the Court’s five-to-four decision to strike down partial-birth abortion bans in the states? Still, Ginsburg always looked for consensus in abortion cases where she could find it. She joined the 2014 McCullen v. Coakley opinion, where the Court unanimously struck down a Massachusetts law establishing 35-foot buffer zones around abortion clinics on the grounds that limiting abortion protests in this manner violated the First Amendment rights of protesters.

In our conversations, I asked Justice Ginsburg repeatedly whether she thought Roe would be overturned. After Justice O’Connor’s retirement in 2006, she said many times that she feared that Roe would be narrowed and that the greatest effect would be felt by poor women who lived in areas where access to abortion was already limited. But in 2018, a month after Justice Kennedy’s retirement, she told me she was “skeptically hopeful” that the Court would not overturn landmark precedents with abandon and that the core of Roe’s protection for reproductive choice early in pregnancy would be preserved. – Jeffrey Rosen

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Jeffrey Rosen: Will Roe v. Wade be overturned?

Ruth Bader Ginsburg: This Court had an opportunity to do that in the Casey case. There was a strong opinion speaking for Justice O’Connor, Justice Kennedy, and Justice Souter, saying Roe v. Wade has been the law of the land since 1973, we respect precedent, and Roe v. Wade should not be overruled. If the Court sticks to that position, there will be no overruling, and it won’t matter whether there’s a Democratic president or a Republican president.

JR: And if Roe were overturned, how bad would the consequences be?

RBG: It would be bad for non-affluent women. If we imagine the worst-case scenario, with Roe v. Wade overruled, there would remain many states that would not go back to the way it once was. It doesn’t matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can’t pay are the only women who would be affected.

Roe v. Wade was decided in 1973. Two generations of young women have grown up understanding that they can control their own reproductive capacity and in fact their life’s destiny. We will never go back to the way it once was. Roe v. Wade, in its time, was not all that controversial. It was a seven-to-two decision, only two dissenters. Even at the time of Roe v. Wade, there were four states where a woman who wanted an abortion, at least in the first trimester, could have access to a safe, legal abortion. And now, it would be a lot more than four states. What that means is any woman who has the wherewithal to travel, to take a plane, to take a train to a state that provides access to abortion, that woman will never have a problem. Any woman who has the means to travel from one state to another—you don’t have to go to Japan or Cuba—will have access to a safe abortion. So it’s the poor people—whatever the state legislation may be, whatever the Court may do—it is only poor women who will suffer, and I think that if people realize that, maybe they will have a different attitude.

JR: How can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted, or is it necessary for courts to remain vigilant?

RBG: 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. Think of the [Gonzales v.] Carhart decision going way back, to the two decisions that denied Medicaid coverage for abortion. I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction. It will take people who care about poor women. The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel or to miss workdays can’t. There is no big constituency out there concerned about access restrictions on poor women.

JR: How can that constituency be created?

RBG: For one thing, the advocacy of human rights groups can make a big difference. Going back to the 1980s, I was speaking at Duke, not about abortion in particular, but about equal opportunities for women to be whatever their God-given talent allowed them to be, without artificial barriers placed in their way. During the question period, an African-American man commented: “We know what you lily-white women are all about. You want to kill black babies.” That’s how some in the African American community regarded the choice movement. So I think it would be helpful if civil rights groups honed in on the impact of the absence of choice on African-American women. That would be useful.

Ultimately, the people have to organize themselves. Think of the Pregnancy Discrimination Act. The Court had said that discrimination on the basis of pregnancy was not discrimination on the basis of sex. A coalition was organized to get [the Pregnancy Discrimination Act] passed. The ACLU was the central player, but everyone was on board. It must start with the people. Legislatures are not going to move without that kind of propulsion.

JR: This is a different version of the same question: What was the Court’s error in Roe, and how can it avoid that sort of error in other cases?

RBG: The Texas law was the most extreme in the nation. A woman did not have access to an abortion unless it was necessary to save her life. It didn’t matter that it would ruin her health, it didn’t matter that the pregnancy was the result of a brutal rape or incest. So that case came to the Supreme Court, and the Supreme Court could simply have said, that’s too extreme. That gives no credit at all to the woman’s liberty, so it’s unconstitutional, period. The great constitutional law scholar Paul Freund, when he was asked what he thought of the Roe v. Wade decision, said it’s like the grandmother who trots out her grandson to impress her company and asks him, “Do you know how to spell banana?” And the child answers, “Yes, I know how to start, but I just don’t know where to stop.”

At the time of Roe v. Wade, this issue was all over the state legislatures. Sometimes, the choice people won, sometimes they lost, but they were out there organizing and getting political experience. The Supreme Court’s decision made every law in the country, even the most liberal, unconstitutional in one fell swoop. So the people who prevailed said, “How great, we’re done, we’ve got it all. The Supreme Court gave it to us.” What happened? Opposition mounted, and instead of fighting in the trenches, state by state, to retain restrictive abortion laws, there was one clear target to aim at: the unelected justices of the Supreme Court. This is a decision that should be made, so the argument went, by the people’s elected representatives and not nine, at the time, old men.

The law was in a state of flux. And there were many states, including my home state of New York, that allowed a woman to obtain a safe abortion in the first trimester, no questions asked. There were four states that were in that position; there were other states that had grounds permitting access to abortion—the woman’s health, rape, incest. So the law was in a state of change. I think it would have been healthier for that change to have gone on. The Supreme Court would have struck down the most extreme law, then the states would react to that. The Court usually doesn’t take giant steps. It moves incrementally. Roe v. Wade was a dramatic exception to that cautious way of operating.

JR: You criticized the Court in Roe for jumping ahead of public opinion.

RBG: The Court is a reactive institution. You react to the controversies that are brought to the Court. Roe v. Wade, I should be very clear—I think the result was absolutely right. Texas had the most extreme law in the nation; the Court could have decided the case before it, which is how the Court usually operates. It should have said that the Texas law is unconstitutional. There was no need to declare every law in the country addressing abortion, even the most liberal, unconstitutional. That’s not the way the Court usually operates. It doesn’t take giant steps.

Now I know many people think my judgment about that is wrong. I know there was a very strong Right to Life movement long before Roe came down; it continued after. But now there is a target that was not there before Roe v. Wade.

Another aspect of my criticism: the image you get from reading the Roe v. Wade opinion is it’s mostly a doctor’s rights case—a doctor’s right to prescribe what he thinks his patient needs. And the images of the doctor and the little woman—it’s never the woman alone. It’s always the woman in consultation with her doctor. 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.

JR: That has been your great contribution to the jurisprudence of gender equality. Will the Court, do you think eventually, someday, recognize abortion rights as a question involving gender discrimination?

RBG: Well, I think that theme is already sounded in the Casey decision. The Court had an opportunity to overturn Roe v. Wade, but it said, “No, generations have grown up understanding—girls have grown up understanding—that if they need it, it will be available to them. In the Casey decision, there is a healthy infusion of the idea that this has got to be the woman’s choice.

JR: In your dissent in Gonzales v. Carhart, you criticized the Court for backing away from the equality principle recognized in Casey.

RBG: That was in a partial-birth abortion case. And there what concerned me about the Court’s attitude, they were looking at the woman as not really an adult individual. The opinion said that the woman would live to regret her choice. That was not anything this Court should have thought or said. Adult women are able to make decisions about their own lives’ course no less than men are. So, yes, I thought in Carhart the Court was way out of line. It was a new form of “Big Brother must protect the woman against her own weakness and immature misjudgment.”

JR: You objected that the majority was being paternalistic in imagining that women needed protection from their own choices; they might regret their choices and have second thoughts.

RBG: Yes, the woman had to be protected from her own misjudgment. That she would, in time, understand that she had made a dreadful mistake. But adults make mistakes. They are adults. They’re entitled to make judgments for themselves.

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Excerpted from Conversations with RBG by Jeffrey Rosen. Copyright © Jeffrey Rosen 2019. Reprinted with permission from Holt.