5 Reasons Ruth Bader Ginsburg Wishes Roe v. Wade Had Gone Differently

On Saturday, Supreme Court Justice Ruth Bader Ginsburg spoke at the University of Chicago Law School about the 40th anniversary of the Roe v. Wade decision, which occurred this past January (in case you didn’t go out and get an abortion to celebrate). During Ginsburg’s talk, she voiced issues she has about the ruling – something she’s been doing for at least two decades. It’s her status as the oldest woman on the court that make her opinion continually relevant, despite the fact that she wasn’t yet on the court so as to actually rule on the real Opinion. Here’s why Ginsburg – who is considered by many to be the voice of women’s rights on the court – has a problem with this landmark case.

1. Roe was too focused on doctors and didn’t talk enough about women.

“It’s about the doctor’s freedom to practice his profession as he thinks best. If you read the Roe opinion, you will never see the woman standing alone. It’s always the woman in consultation with her physician.”

Ginsburg believes that the Roe ruling would have been stronger if it hadn’t involved the distinction that abortion is a decision left up to the woman and her doctor. (The opinion itself states that “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”) She elaborates:

“It’s about a doctor’s freedom to practice his profession as he thinks best. It wasn’t woman-centered. It was physician-centered.”

2. The ruling should have left room for individual states to make their own decisions.

“It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg said at the Columbia Journalism School last year:

“The court made a decision that made every abortion law in the country invalid, even the most liberal. We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained.”

Ginsburg believes that the Justices should have passed a ruling that would have just struck down the Texas-specific ruling. As her moderator at the University of Chicago talk Geoffrey Stone explains, “By instead reaching out to decide the much more broader question – whether any prohibition of abortion is constitutionally permissible in the first twenty-four weeks – the Court, in her view, short-circuited the democratic process and failed to allow the states to work out for themselves how best to regulate abortion.”

3. “A woman’s right to choose” should have been protected with a different court case.

According to Ginsburg, there was a case that was a better fit for setting a standard for reproductive freedoms than Roe. 1971’s Struck v. Secretary of Defense involved a female U.S. Air Force Captain who was in Vietnam when she became pregnant, something that, according to Air Force Regulation, made her ineligible for military work. At the time, Ginsburg was not yet a member of the Supreme Court and was representing Struck. Though the case was never heard – and the Air Force rules were changed – she wrote an interesting merits brief about the case:

“The central question raised in this case is whether the Air Force, consistent with the equal protection principle inherent in the due process clause of the fifth amendment, may call for immediate discharge of pregnant women officers…It is petitioner’s position that this distinction reflects arbitrary notions of woman’s place wholly at odds with contemporary legislative and judicial recognition that individual potential must not be restrained, nor equal opportunity limited, by law-sanctioned stereotypical prejudgments. Captain Struck seeks no favors or special protection. She simply asks to be judged on the basis of her individual capacities and qualifications, and not on the basis of characteristics assumed to typify pregnant women.”

Since then, Ginsburg has explained her thoughts more succintly (and with less legalese):

“The idea was: ‘Government, stay out of this.’ I wish that would have been the first case. The court would have better understood this is a question of a woman’s choice.”

4. It wasn’t the right time.

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” Ginsburg says now of Roe v. Wade – leading some to speculate that it’s possible she’s going to be hesitant to pass anything broad-sweeping when it comes to marriage equality rulings.

5. It gave the pro-life movement something to attack.

Roe v. Wade gave “a target to aim at relentlessly,” said Ginsburg of the pro-life movement. “It seemed to stop the momentum, which was on the side of change.” In an address delivered at the University of North Carolina School of Law in 1984 (later republished in their Law Review), she elaborated:

“The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction reaction in Congress and state legislatures. In place of the trend ‘toward liberalization of abortion statutes’ noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women’s abortions.”

Whether it’s hindsight or not, Ginsburg accurately explains how the biggest issue with Roe v. Wade is that it’s become a rallying cry:

“What a great organizing tool it is: You have a name, a symbol—Roe v. Wade. You could aim at [the fact] that this decision was made not in the ordinary democratic process.”

Ruth on Roe = the end = maybe no one will ever talk about abortion again?

Earlier: Justice Ginsburg Criticizes Lack of ‘Restraint’ in Roe v. Wade Ruling

Ginsberg offers alternative, critical perspective on Roe [Chicago Maroon]

Justice Ginsburg: Roe v. Wade not ‘woman-centered’ [Chicago Tribune]

Justice Ginsburg’s Misdirection [NYT]

Photo via AP/Paul Beaty