Did Justice Ginsburg Reveal More Than She Intended To?

By Dave Andrusko
http://twitter.com/daveha

Editor’s note. This first appeared July 9, 2009.

Supreme Court Justice Ruth Bader Ginsburg

You may already have heard rumblings about the comments pro-abortion Justice Ruth Bader Ginsburg made to New York Times reporter Emily Bazelon in a story will run in this Sunday’s New York Times Magazine but has already appeared online. I want to be careful not to go too far, but not be afraid to follow where her comments appear to lead.

Beyond the immediate controversy—the implication that (as one commentator put it), “A sitting Justice on the Supreme Court of the United States just lamented that Roe did not mandate funding of abortion through Medicaid in order to reduce ‘populations that we don’t want to have too many of’”– we also learn a lot in Bazelon’s 4,327-word-long Q&A about the direction justices like Ginsburg would like abortion jurisprudence to go. (Hint: back to the future.)

What has drawn rebukes began with a back-and-forth about a 1972 abortion-related case that Bazelon characterized as  “t[ying] together themes of women’s equality and reproductive freedom. The court split those themes apart in Roe v. Wade. Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality?”

Ginsburg replied, “ Oh, yes. I think it will be.” (We’ll return to that in a second.)

Then the controversial section of the Q &A.

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

JUSTICE GINSBURG: Reproductive choice has to be straightened out. 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.

Q: 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?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] 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.” (Emphasis added.)

It’s hard not to reach a very ugly conclusion. Ginsburg read Roe to be setting the stage for the government to pay for the abortions of poor women. Why? Because part of the backdrop for Roe—and the reason she expected the High Court in to overturn the Hyde Amendment’s limitation on Medicaid-financed abortion in McRae–was fear that the “wrong” kinds of people were experiencing population growth.

Those who are younger need to be reminded that the “population bomb” hysteria of the 1960s and ‘70s was steeped in eugenics—it would “solve” the “population crisis” by limited the growth of the “wrong” people.

Bazelon then asked Ginsburg what she meant by “straightening out” reproductive rights.

“The basic thing is that the government has no business making that choice for a woman,” Ginsburg responded.

As she amplified her answer, it meant she not only had no use for limitations on government funding of abortion, but also for a ban on partial-birth abortion (Justice Kennedy’s opinion  “reflects ancient notions about women’s place in the family”), informed consent, waiting periods—what Ginsburg described as “tests.”

It would take a whole other National Right to Life News Today story to talk about the other very unsettling (although hardly novel) undercurrent of Ginsburg’s remarks: that equality for women is grounded in their ability to take the lives of their own children. Ginsburg thinks that “time is on the side of change”—change meaning those who think like she does—but I would argue just the opposite.

If there is anything that is clear to me, it is that women today do not need—nor do they think they need—the crutch of abortion in order to be equal with men. That realization will be as important as anything in dooming the reign of Roe v. Wade.

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