As part of her Times interview, Supreme Court Justice Ruth Bader Ginsburg made some brief remarks about the Hyde Amendment and whether criticisms of the reproductive rights movement's flirtation with economic eugenics would prove true. Those have, naturally, been misinterpreted.
Ginsburg first noted two levels of concern with the Supreme Court's abortion rulings. The first was that the "undue hardship" provisions disproportionately affect economically disadvantaged women by limiting their access.
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.
The second was that Roe itself (and many of the other rulings and laws) are inherently paternalistic. She said:
It will be, it should be, that this is a woman's decision. It's entirely appropriate to say it has to be an informed decision, but that doesn't mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.
The poor little woman [in Kennedy's opinion on the partial birth abortion case], to regret the choice that she made. Unfortunately there is something of that in Roe. It's not about the women alone. It's the women in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him.
Both of which are interesting analyses of who the anti-abortion movement is preventing from exercising their constitutional rights and why the ways in which the Court and lawmakers view women when it comes to abortion are inherently paternalistic and condescending.
In the context of the statement that the "undue hardship" test is actually systematically disadvantaging poor women, Emily Bazelon asked Ginsburg about the Hyde Amendment, which was originally passed in 1976 (3 years after the Supreme Court ruled in favor of the plaintiffs in Roe v. Wade) and which originally prohibited Medicaid recipients (poor women) from being able to use their government health insurance to pay for abortion services at all — it was later modified to make exceptions for the life of the mother or women whose pregnancies were the result of rape or incest. As we know now, the end result is that one in four Medicaid recipients is compelled to carry an unwanted pregnancy to term because of the law, while others delay their abortions at further risk to themselves.
The Hyde Amendment was the subject of a federal lawsuit brought by Norma McRae, a pregnant New York Medicaid recipien. In a 1980 Supreme Court decision in Harris v. McRae — before Ginsburg was a judge — ruled that the federal government had no obligation to fund abortions for women on Medicaid. The opinion, given by Justice Potter Stewart said, in part that the Court's decision in Roe v. Wade did not confer on McRae (or anyone else) "a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."
In response to Bazelon's question, Ginsburg cites Harris v. McRae, and says she found the decision surprising, but not for the reasons one might assume.
Yes, the ruling about that surprised me. 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.
This is, obviously, been the subject of some misreading.
I asked Emily Bazelon about it, and she said:
The main thing I'd say about this is that it was clear that when Justice Ginsburg said "we," when she was talking about populations that we don't want to have too many of (you can get the exact quote from the piece), she meant some people in the world, not herself or a group that she feels a part of. That's not how she sees the world, as you I'm sure know. Her point was about other people's conception of who they thought should be encouraged to have children and who shouldn't be, not her own.
In other words, Bazelon is saying the we should have been in quotes, like this:
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.
This, of course, hasn't stopped any right-wingers from assuming that Ginsburg was admitting the pro-choice movement was all about eugenics or others who were convinced that her use of the word "we" was something more nefarious than a reference to "some people."
The reproductive choice movement — and particularly Planned Parenthood — is often derided by the anti-abortion movement as nothing more than a cover for eugenics, due in no small part to founder Margaret Sanger's well-publicized written works on the subject. While her conception of eugenics wasn't inherently race-based, it was very much economic-based — which, of course, had strong and has strong correlations to race in this country. Sanger's commitment to eugenics, regardless of whether it was a deeply-held belief or a political tactic to gain support for a movement that was struggling for oxygen and legitimacy, left a stain on the reproductive choice movement it was yet to fully expunge.
And that stain isn't visible only to conservatives. Feminists from Germaine Greer to Linda Gordon to Betsy Hartmann to Andrea Smith (and beyond) have been openly critical of Planned Parenthood's roots and as suspicious of some of its activities — like trying to get the government to pay for poor women's abortions, feeling that whether one can afford the procedure and whether one can afford the child are equally economically coercive, and a government which provides abortions for poor women but not economic assistance for pregnant ones isn't necessarily the best thing, either. There were feminists — radical feminists, in particular, and feminists of color — who wondered aloud whether a group like Planned Parenthood, with its sordid roots in the eugenics movement, should be pushing for more abortions for poor women, and why they were.
So when Ginsburg said "we," she could have been talking about the Republican establishment in the 1970s — although, as she noted in her interview, it was the Nixon Administration that first set about enforcing affirmative action laws — or she could have been noting that there were plenty of feminists in the 70s worried that the abortion-rights movement wasn't necessarily compatible with the larger aims of a social movement for equality.
That argument, if you ask anti-abortion feminists, is still ongoing.
The Place of Women on the Court [New York Times]
Related: Ginsburg: I Thought Roe Was To Rid Undesirables [World Net Daily]
Hyde Amendment [Wikipedia]
Harris v. McRae [Wikipedia]
Restricting on Medicaid Funding for Abortions Forces One In Four Poor Women To Carry Pregnancy To Term [Guttmacher Institute]
People & Events: Eugenics and Birth Control [PBS]
The Ethic of Control: Margaret Sanger, Eugenics, and Planned Parenthood [Inside Catholic]
Sex and Destiny: The Politics of Human Fertility
A Companion To American Women's History [Google Books]
Battleground [Google Books]
Conquest [Google Books]