Abortion RBG Roe V. Wade

The Late Justice Ruth Bader Ginsburg Critiqued Roe v. Wade at Chicago Law School Visit

She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

Editor’s Note: This was originally published May 15, 2013 and is reprinted here because of its historic significance and relevance to the recent Supreme Court decision to overturn Roe v. Wade. Justice Ginsburg made similar remarks in other public appearances.

By Meredith Heagney / University of Chicago Law School

Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision.

Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.

Ginsburg and Professor Geoffrey Stone, a longtime scholar of reproductive rights and constitutional law, spoke for 90 minutes before a capacity crowd in the Law School auditorium on May 11 [2013] on “Roe v. Wade at 40.”

“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

In his introduction for Ginsburg, Schill spoke of her ties to the Law School: Her late husband, Martin, was a Visiting Professor, her son, James, attended the law school before starting a classical music record label, and, Professor Aziz Huq was her clerk in 2003 and 2004. She’s also a longtime friend of Stone.

Ginsburg and Stone each had important perspectives to share on Roe and other gender-related cases of that era. The same year as Roe, Ginsburg argued her first case before the Supreme Court, Frontiero v. Richardson, wherein she advocated that strict scrutiny be applied to sex classifications just as it was to racial classifications. She could persuade only four justices to her side, but in the wake of Frontiero, the Court established a standard of intermediate scrutiny for constitutional issues of gender.

Two years before that, she wrote the brief in the 1971 Supreme Court case Reed v. Reed, which overturned an Idaho law granting men preference as estate administrators and extended the Constitution’s equal protection guarantee to women for the first time.

Stone, for his part, was clerking for Supreme Court Justice William Brennan during Frontiero and Roe, and he recalled watching Ginsburg’s oral argument in the former case, which he called “mesmerizing.”

In her back-and-forth with Stone, Ginsburg offered many fascinating observations. She talked about what life was like for women in the “not so good old days,” when judges believed that laws restricting women from certain work, such as bartending or lawyering, were there to protect the fairer sex. Her goal as a litigator was to show judges that these rules marginalized women, rather than protect them from harm. She said that only “well-heeled” girls and women who found themselves with an unwanted pregnancy had the option to get an abortion, by traveling abroad, while poorer women had no such option.

“For most young women, the only way to deal with it was to marry him,” Ginsburg said.

Ginsburg talked about the case she wished would’ve been the first reproductive freedom case before the U.S. Supreme Court, Struck v. Secretary of Defense. In that case, Ginsburg represented Capt. Susan Struck, who was serving in the Air Force in Vietnam when she became pregnant. The Air Force gave her two options: terminate or leave the Air Force. Struck wanted to keep the baby and her job, and Ginsburg took her case. The Supreme Court agreed to hear the case, but the Air Force relented and allowed Struck to keep her job, rendering the issue moot. 

“I wish that would’ve been the first case. I think the Court would’ve better understood that this is about women’s choice,” Ginsburg said.

In response to a student question about what would happen if Roe were overturned now, Ginsburg said the effect would largely be restricted to poor women in anti-choice states. Many states would never outlaw abortion, and wealthier women will always be able to travel to those states, she pointed out.

“If you have the sophistication and the money, you’re going to have someplace in the United States where your choice can be exercised in a safe manner,” she said. “It would mean poor women have no choice. That doesn’t make sense as a policy.”

Brittany Gorin, ’15, asked Ginsburg what advice she has for young women taking up the mantle of the women’s rights movement. Ginsburg expressed disappointment that many young women shy away from the word “feminist” as if it is a foul word, and the fact that young women aren’t pushing for the passage of the Equal Rights Amendment. She reminded the young women in the audience that they were lucky to have many opportunities that many women do not have. Women must work to ensure that all women have better opportunities, she said.

“Now all the doors are open, but we haven’t come all the way,” Ginsburg said.

Afterward, Gorin said it was a thrill to get to ask Ginsburg a question, and that the justice’s message resonated with her.

“I feel very fortunate to be privileged enough to be here, at the University of Chicago, where I get to hear a justice,” Gorin said. “We have a requirement upon us to help other people who aren’t as privileged as we are.” 

Fellow 1L Sara Haley, ’15, said she planned to use a practical tip shared by Ginsburg about writing briefs. During the talk, Stone acknowledged that he drafted Brennan’s plurality opinion in Frontiero by relying heavily on Ginsburg’s brief.

“That was always my aim,” Ginsburg revealed. “When I wrote briefs I wanted to give the court something it could convert into an opinion.”

Keiko Rose, ’15, said she enjoyed listening as Ginsburg talked through complex legal ideas. “You see immediately why she’s as successful as she is, the way her brain works,” Rose said. “People like us – women law students – have so many opportunities because of people like Justice Ginsburg,” she said.

Mishan Wroe, ’13, even received a compliment from Ginsburg, which she said would be a lifelong memory. After her speech, Ginsburg visited with students in the Green Lounge, where Huq, her former clerk, told her about Wroe’s work co-founding the Domestic Violence Project. The initiative offers pro bono legal aid to women in abusive relationships.

“She said it was great that I did that,” Wroe said, leaving the building with a big smile and her phone in hand, about to call family to relay the story. “It’s pretty surreal to talk to her. She’s such a hero of mine.”

[For more on the Supreme Court’s reversal of Roe v. Wade, read “Obama and Liberals Killed Abortion Rights” and Michael Moore Podcast: “Millions Must Respond”]

26 comments

  1. Court decisions in political matters are political, not legal. Ginsberg knew this, as does every other judge and justice. That’s how we know which way justices will vote before they do so; it has nothing to do with the law.

    Ginsberg was a liberal hero, not a progressive one. She was on the wrong side of some decisions, and she refused to step down when Obama was president so that she could be replaced by a Democratic president. There haven’t been any good justices on the Supreme Court since Thurgood Marshall and William Brennan.

    1. As I look back at the past (and hopefully LAST) Trump years, I have taken a dimmer and dimmer view of Ruth B. Ginsberg. Indeed–as she was fighting cancer and for her life–agreed: She should have stepped down to allow for a new “like-minded” judge to be appointed under Obama.
      But she did not do that and I lost most respect for her because of that. Remember, even Sandra Day O’Conner took that bold step to care for her ailing husband.
      Then there was the other Obama surreal episode where our country stood by and watched the partisan opposition deny him his Constitutional right to appoint a new SCOUS. That incident pretty much confirmed for me that things are over for the USA.

      1. Obama let Merrick Garland twist in the wind. Obama should have gotten up in public and in no uncertain terms reamed McConnell out. He did not. Vintage Obama. And Garland? Not surprisingly, a right-wing jurist.

  2. Yeah, yeah, yeah. It is all about nuance and slowly building the case, so that Justices can comprehend it is about Women’s Rights. As Ginsberg dances around the reality of the fact. That is incredibly moot, taken the make-up of a court, dominated by Catholics or those who respect ‘the true faith’, as it is so termed by its pedophilic priesthood. Let alone that sitting justices either lied or obfuscated their intent to overturn Roe while testifying before Congress during their confirmation hearing.

    The mentally impaired members on the ‘right’ of the court with their elemental theocratic fascist bent are not reasonable individuals and essentially, batshit crazy. One belongs to an actual cult, People of Praise – and claims the practice of law is, “a means to the end of serving God”. Another an afficiando of pornography, interested in revisiting: anti-sodomy laws, marriage equality and right to contraception .

    The Justices, on the right, are not interested in a nuanced approach to defending Women’s Rights, in any way or manner. These people are Medievalists, many practicing what is termed an ‘originalist’ interpretation of the Constitution, a queer fetish that ignores the reality of such an atavistic reasoning and is merely a sop for rationalizations grounded in an incredibly conservative and repressive mindset – it is certainly not a legal philosophy and at best an ideological stance. It is certain, they do not serve the people, let alone ‘the law’.

    One might offer, if Roberts was any further to the right he would be committed to an asylum along with many of his brethren on the court. Especially, the odious Thomas, who would be at home sitting on The Sacred Congregation for the Doctrine of the Faith and burning witches and heretics.

    Those who sheepishly considered Roberts would leaven the court’s decision and ‘save’ some element of Roe are not just deluded but fail to understand that Roberts is essentially a fanatic dedicated to a very dark ideology.

    Those who dominate the court are intolerant fundamentalists who look to fashion a culture that is neither democratic or in the true sense catholic. Their designs are transparent and purposeful. The decision was not just immanent, it was crafted by the intent of those who overturned Roe – one main purpose of their emplacement on the court.

    1. You are so far to the left with these comments it’s ridiculous. These justices don’t get to this post easily . I’m
      Sorry the decision didn’t go your way but that’s the system. Let it do it’s job. For what it’s worth, I disagree with nearly everything the Obama administration did under the cover of darkness. He was especially good at that

      1. So this grandmother woke up this morning and the majority of Americans…women…were suddenly second-class citizens and my granddaughter and nieces were now intended for breeding. How much evil can
        those in power create? A woman who does not recognize this is willing chattel.

      2. That’s the “system?” Yeah, it sure is a “system,” all right. What did Obama do “under cover of darkness” and what has that got to do with the poster’s accurate assessment of the reactionary dunces who sit on the Court? If you think because it’s tough to get seated on the Court the judges installed there must be brilliant, you are extraordinarily naive.

    2. Both Catholics and Jews are vastly over-represented on SCOTUS and have been in recent memory.
      Justices are selected by Presidents supposedly for theirINDEPENDENT legal minds, but since the rejection of Robert Bork, SCOTUS has been extremely partisan.
      Ginsburg was feisty and had a lot of legal “skeletons in her closet” of rulings, but Joe Biden had the Ginsburg Rule to keep her from being rejected: https://www.heritage.org/courts/commentary/the-ginsburg-rule
      Ironically her refusal to step down and be replaced by another “liberal” judge under Obama contributed greatly to the present “conservative” SCOTUS.

      1. But had she resigned, Obama would have likely replaced her with a right-wing justice such as his beloved Merrick Garland….I wonder whether we would have been any better than we are today.

  3. 26 states to ban or restrict abortion
    “the US constitution contains inherent contradictions that encourages dictatorship”. Kurt Godel

  4. Kill capitalism before it kills us and the rest of the planet’s living beings. The recent SCOTUS ruling is another ruling class effort to demoralize the working class from fighting back and an effort to consolidate the fascist movement they have started. Capitalist laws protect profit not the welfare of the working class. They can’t be used to create a better life for all.

  5. I used to have the very smallest of doubts that scheerpost.com was a pro-MAGA site using Rt.com-style attacks on the Democrats to dissuade left wing voters and help the Republicans.

    All doubt is now gone.

    1. Jesus, blue team–red team knuckle-dragging, eh? Check out Salon or some other such site. You’re in the wrong place.

  6. Ruth Bader Ginsburg understood that it was never the justices decision to make, their job is to interpret law not make it. If you don’t agree I’m sure you would had the conservative justices came out and stated that as of today abortion Will be considered murder in all 50 states. Again it was an overreach 50 years ago.

    1. I am afraid, Paul, that you have no clue as to how US law works, specifically the principle of precedent – each and every court decision “make” the law in the very real sense that it allows or prohibit any and all behaviour that follows it.

      In any case, removing the protection of abortion is no less “making” the law than according it!

  7. It was Ginsburg’s refusal to step down after already battling one cancer 20 years earlier that is consequentially the reason why abortion rights have been overturned. She spun the wheel of a Russian roulette and insisted on having power when she should have done the right thing and stepped down to make room for a younger liberal who Obama could have replaced her with . Her ego convinced her she was immortal. She loved her celebrity status too much. Countless American women (and men) will suffer as a result of her misguided hubris. Some people only exist to provide a cautionary tale for others. She is one of them.

  8. The imperfections of Roe v Wade notwithstanding, the attempt, in the text above, to downplay, even trivialize the enormity of the conservative generational efforts to annul it is reprehensible. Doing so by completely misrepresenting RBG’s calls to enhance it through Women Rights legislation rather than eliminate it is Orwellian in nature, revisionist in intention, and reeking of the left-ish, Neo Progressive desperation to describe the reality of contemporary politics with no reference to its most distinctive feature, namely the exponentially growing liberal-conservative divide.

  9. Wading through the Roe’s of Narrow-minded Hypocrisy.
    Fetus: an unborn offspring of a mammal, in particular an unborn human baby more than eight weeks after conception… Synonyms: embryo, fertilized egg, unborn baby, unborn child.
    So, let’s just arbitrarily change the dictionaries of our advanced medical and natural sciences, and award the pre-born fetus the same state of an only potentially long-term viability, of a post-natal person, in our demented culture, because now a minority of the supreme court of religious fundamentalists say to do so.
    Corporations were too long ago arbitrarily assigned the rights of persons, yet none has been prosecuted, let alone criminalized for intentionally aborting the peoples’ political system; by way of patently illegal insertions of unlimited amounts of the toxin of money into the womb of the country’s body politic against its successful democratic thriving, and overall social viability.
    To date, not one corporate monstrosity has yet even been considered for prosecution for the intentional infliction of bodily harm – threatening the very life of all of our’ mother’s democratic body political survival.
    This is yet another reflection, in Americas mirror, of the regressing insanity ever more rapidly overtaking country!
    So again, let’s just continue to engage in the charades of American dreaming!

  10. Finish this fawning, please. This is not critical thinking or real investigative inquiry. The Black Robed fools are what they are — there for the elites, end of story. GInsberg? Racist!

    “If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?”

    “Reproductive choice has to be straightened out,” Ginsburg responded. “There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.”

    The reporter then asked a follow-up, “Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?”

    “Yes,” Ginsburg said, “the ruling [Harris v. McRae] about that surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”

    +–+

    A compelling letter to this Black Robed racist:

    https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1200&context=djglp

  11. RBG’s quote about Roe not being “women centered” is a load of crap. The claim it is doctor centered is even worse,

    Roe was broader than “women” – a right to “privacy” is not gendered and is not limited to reproductive decisions.

    RGB illustrates the insanity of identity politics.

    Right wingers will be using the legal basis for Roe, i.e. substantive due process in the 14th amendment, to unwind protections for LGBTQ and contraception and inter-racial marriage and more.

    But she is half right on the relationship between court decisions and democratic activism. Liberals relied on Courts, instead of building coalitions and activism. But RGB doesn’t make this criticism, she talks foolishly about building support in right wing states, an absurd liberal pipedream.

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