By Dave Andrusko
The following is no surprise to anyone who has read a decent sampling of the amicus briefs filed in the case of Dobbs v. Jackson Women’s Health Organization which the Supreme Court will hear this fall. But the Washington Post’s Robert Barnes is, to the best of my knowledge, the first reporter to pick up on this seeming anomaly: “Antiabortion activists are citing an unlikely authority for their arguments that Roe v. Wade is a misguided ruling that deserves to be overturned: Justice Ruth Bader Ginsburg.”
Pro-lifers, as Barnes points out, have quoted Ginsburg in their briefs, principally from a 1992 Madison Lecture [“Speaking in a Judicial Voice”] and from a 1985 article written for the North Carolina Law Review titled “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.”
To be clear, Justice Ginsburg fiercely believed in a woman’s right to abortion. Barnes quotes this from her confirmation hearing:
“It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling,” Ginsburg told the Senate Judiciary Committee. “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
But, as best an outsider can tell, Ginsburg believed that given the alterations in various states’ abortion laws, the abortion “reform” movement would inevitably carry the day. However, the “sweep and detail of the [Roe] opinion”—gutting the abortion statutes of all 50 states—was a tactical error that “stimulated a right-to-life movement and laws aimed at minimizing Roe’s impact, Ginsburg said,” according to Debra Cassens Weiss. “Before the opinion, the trend was toward liberalization of abortion statutes.”
“Ginsburg disagreed with the Roe majority’s foundational finding that the right to abortion was based on the privacy of a woman’s decisionmaking with her doctor,” Barnes wrote. She maintained the opinion should have cited equal protection principles.
Additionally, she felt the court went too far in 1973 in setting standards for the entire country, rather than simply striking down a Texas law she said “intolerably shackled a woman’s autonomy.”
She blamed the court’s “breathtaking” decision for short-circuiting the debate about abortion rights, which she believed would have evolved into protection for abortion rights by the political branches.
Ginsburg’s opposition, in other words, was not to the outcome but to the constitutional grounds on which Roe v. Wade was based and the fierce pro-life opposition it stirred up.
Barnes keenly cites several briefs that harken back to Ginsburg’s criticism of Roe v. Wade. One was “240 women scholars and professionals, and prolife feminist organizations” which we reviewed elsewhere today.
Another was the fine brief submitted by the Mississippi Attorney General Lynn Fitch (R) which we wrote about several times, including here. In her introduction Fitch writes “Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse.” Fitch cited Ginsburg’s 1985 law review article as proof positive.
Likewise, in its amicus brief, The Becket Fund for Religious Liberty wrote “Roe and Casey function as a mechanism for generating conflicts across many areas of religious life” and “thus proves the truth of Justice Ginsburg’s observation that ‘[h]eavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.’”
There are so many quotes from Ginsburg that all point to the same conclusion: Roe was based on dubious constitutional grounds and “ventured too far in the change it ordered and presented an incomplete justification for its action.” For example
Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.
We’ll continue analyzing these amicus briefs and will be sure to note Justice Ginsburg’s strong criticisms of Roe v. Wade along the way.