Pro-Life Perspective: Justice Ginsburg and Roe v. Wade

Editor’s note. This can also be heard at www.prolifeperspective.com.

Supreme Court Justice Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg is probably the most famous example of a pro-abortionist who passionately believes in the cause but believes that the “right” to abortion would be more secure had the High Court not established it in “one fell swoop.” She elaborated on this stance once again recently when (as the headline for the Harvard Gazette, the school newspaper, put it) “Ginsburg holds court: Supreme Court justice discusses career, cases during Harvard Law School session.”

As part of a discussion with Harvard Law School Dean Martha Minow, Ginsburg responded to a question from the audience about “backlash” created by judicial decisions. Her answer is interesting on many levels.

Ginsburg began by making it clear she wasn’t, as she is often described, “against” Roe v. Wade. She said she was very much for the “judgment,” then pivoted to gently critique not the “what” but the “how.”

She understands that Roe didn’t create our Movement. However, her position is that the manner in which the Court went about deciding the case [actually cases: Roe v. Wade and Doe v. Bolton] created a “target.” The justices could have decided just the law at issue in Texas (the Roe case) and come back another day to revisit other state statutes.

But instead of proceeding in “slow degrees,” Ginsburg said, the ruling made every abortion law in the United States (even the most “liberal”) “unconstitutional in one fell swoop.” She added, “And that’s not the way the Court ordinarily operates.”

Put another way, the Court’s 7-2 decisions (which she referred to as a “giant step”) crystallized widespread opposition. Instead of just angering the citizens of Texas, Roe/Doe angered every pro-life citizen and even many who are not in our corner but disagreed with the Court’s high-handed approach.

There is rich, although wholly unintended two-fold irony in the story, written by Colleen Walsh. First, Ginsberg talks about the part of her job that she “genuinely hate[s]”—voting in death penalty cases. At the risk of stating the obvious, her work before she went on the bench and ever since has been a “vote” to carry out 1.2 million death penalties each and every year.

Second, the very next topic after Walsh discusses Ginsburg’s observations about abortion is her position on the Court as fixer. Walsh writes,

“Ginsburg also took issue with the notion that the court should be responsible for fixing society’s ills.

“’It’s rare that a court will move unless the people want them to. … Before every major change, it was people who saw that the laws were wrong, wanted them to change, were fighting to capture other people’s minds, and then trying to get legislative change,’ that pushed issues along. ‘Then the court is the last resort. … It has to be the people who want the change, and without them no change will be lasting.’”

Again, at the risk of stating the self-evident, that applies perfectly to the abortion debate. There was no consensus—then or now—for what amounts to abortion on demand throughout pregnancy.

That is why the author of Roe and Doe, Justice Harry Blackmun, went out of his way to insist that the decisions were not radical at all. As Blackmun “evolved,” he essentially came to take the position that Roe/Doe weren’t radical enough–and surely not some of the Court’s subsequent abortion jurisprudence, which he was always bemoaning was going to effectively overturn the 1973 decisions. But that was later. In the beginning, Blackmun minimized the impact of what he had wrought. 

Lots of pro-abortionists disagree with Justice Ginsburg for a variety of reasons. Some do because they understand that it was not at all inevitable that “reform” legislation would sweep through the states; they needed the High Court to just squash all abortion statutes. Others disagree because they DO believe it is the Court’s job to leapfrog what they consider to be lagging societal support—in this case for unfettered abortion.

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