By Monica Chen
Although the late Supreme Court Justice Ruth Bader Ginsburg has been held up by the pro-choice movement and feminist organizations as an icon of feminism, widely assumed to support Roe v. Wade, what the movements have been ignoring are Ginsburg’s own words on the decision.
Ginsburg had strong criticisms of Roe over the decades, and was consistent in her points of criticism. Ginsburg even called the landmark 1973 decision, which legalized abortions nationwide, a “regime.” Her words are now echoed by Justice Samuel Alito’s recent leaked draft opinion to overturn the decision.
The Court had “fashion(ed) a regime blanketing the subject, a set of rules that displaced virtually every state law then in force,” Ginsburg wrote forcefully in 1992 in the wake of Planned Parenthood v. Casey. Ginsburg thought Roe took the debate on abortion out of state legislatures — away from the legislative branch of government — and that’s where that debate had been up to that point and should have stayed.
According to Politico, Alito wrote in his majority draft opinion: “Roe was egregiously wrong from the start. We hold that Roe and Casey must be overruled. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Alito’s opinion is on the case, Dobbs v. Jackson Women’s Health Organization, on Mississippi’s law banning abortions after 15 weeks, except in cases of fetal abnormality or medical emergency.
Roe v. Wade was settled on the right to privacy, using the Due Process Clause of the Fourteenth Amendment, and established the trimester framework for abortion. “Jane Roe” had become pregnant with her third child and filed suit in Texas, which had the strictest law in the country, allowing no abortion except when it was necessary to save the mother’s life.
In 1992, Planned Parenthood v. Casey walked back Roe’s trimester framework and replaced it with the “undue burden” standard, with greater emphasis on fetal viability.
Most notable in what Ginsburg has said about Roe — as well as Casey — was her continued insistence in dialogue, in political involvement, and her belief in the legislative process to ultimately establish the equal rights of women. There were states that were more liberal than Texas in allowing abortion in 1973, including her own state, New York. And like the growing acceptance of no-fault divorce, Ginsburg thought the incremental progress that had been happening up until that time in the courts and in legislatures should have been allowed to continue.
Although Ginsburg is not on public record as having commented on nationally codifying Roe through the Women’s Health Protection Act, it is difficult to imagine that she would have supported another “regime” to replace the existing one.
What Ginsburg thought of Roe and abortion, in her own words:
Ginsburg was definitely a feminist and thought the choice of whether or not to have an abortion — to have a child — was an important part of equal rights for women.
At her confirmation hearing in 1993, here is how she put it:
“This is something central to a woman, to her life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
When it came to Roe, Ginsburg’s thoughts were crystallized by 1992 in an article she wrote in the New York University Law Review. Over the years, she added observations to that but the fundamental criticisms she had of Roe were unchanged: The ruling went too far. The Supreme Court should have given a decision that allowed the legislative branch to get involved. The abortion issue should have been decided by the states.
In fact, Ginsburg thought Roe unnecessarily fueled controversy in the decades to come, to the detriment of underprivileged women who were the most vulnerable in society.
In July 2020, she said at a talk with David Rubenstein, chairman of Duke University’s Board of Trustees:
The court had an easy target because the Texas law was the most extreme in the nation. Abortion could be had only if it was necessary to save the woman’s life. Doesn’t matter if her health would be ruined, if she was the victim of rape or incest.
I thought Roe v. Wade was an easy case and the Supreme Court could have held that most extreme law unconstitutional and put down its pen. Instead, the court wrote an opinion that made every abortion restriction in the country illegal in one fell swoop.
Some women felt I should have been 100 percent in favor of Roe v. Wade, because I wasn’t.
In May 2013, Ginsburg had an interesting observation about Roe while at the University of Chicago Law School with Professor Geoffrey Stone, pointing out that it was more about the doctor and not the woman. The decision, afterall, was about privacy and not equal rights.
Ginsburg said bluntly:
Another feature of Roe is Roe really isn’t about the woman’s choice, is it? It’s about the doctor’s freedom to practice his profession as he thinks best. Read the Roe opinion. You will never see the woman standing alone. It was always the woman in consultation with her physician. So the picture I got from that decision was tall doctor and little woman needing his advice and care. It wasn’t woman-centered, it was physician-centered. Roe was not just restricting the woman’s choice. It was telling the doctor even if it is in your best medical judgment that this person have an abortion, you can’t exercise that best medical judgment. I don’t know if any of the justices on the court appreciated that aspect of it. That it was very much about the doctor’s freedom to practice his profession.
These talks she gave later in life built upon the criticisms she had of Roe by 1992, published in the New York University Law Review:
First, she criticized Roe for being a rushed decision:
Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.
And because Roe was rushed and vast, it fueled controversy instead of reducing it, Ginsburg wrote:
Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey?
She lamented the fact that Roe kept the abortion issue out of the political process during a time when abortion, like divorce, was becoming more accepted in American society.
Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures “toward liberalization of abortion statutes.” That movement for legislative change ran parallel to another law revision effort then underway — the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s.
In her opinion, this fueled controversy and the rise of the Moral Majority and the right to life movements in the subsequent decades:
No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
(Ginsburg said the same thing at the University of Chicago talk: “What a great organizing tool it was. The court had given the opponents of access to abortion a target to aim at relentlessly. It seemed to have stopped the momentum on the side of change.”)
She pointed out that Planned Parenthood v. Casey was a “retreat” from Roe and was concerned about the impact of the Court’s decisions on women who were less privileged in society:
In most of the post-1970 gender-classification cases, unlike Roe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decision-making, one that was not extravagant or divisive. Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue. The most recent Planned Parenthood decision notably retreats from Roe and further excludes from the High Court’s protection women lacking the means or the sophistication to surmount burdensome legislation.
In concluding the article, Ginsburg found hope in the political involvement of the American people, which was where she had faith that equality for women will someday be reached:
The latest decision (Planned Parenthood) may have had the sanguine effect, however, of contributing to the ongoing revitalization in the 1980s and 1990s of the political movement in progress in the early 1970s, a movement that addressed not simply or dominantly the courts but primarily the people’s representatives and the people themselves.
That renewed force, one may hope, will — within a relatively short span — yield an enduring resolution of this vital matter in a way that affirms the dignity and equality of women.