Archive for Abortion

Ginsburg’s views on abortion case: Roe v Wade

Posted in Ginsburg, Roe V Wade History, Ruth Bader Ginsburg, Supreme Court with tags , , , , , , on October 23, 2020 by saynsumthn

Ginsburg suggested that nine unelected justices deciding the abortion case Roe v Wade was not in line with the court’s ordinary process.

Below are several statements from former Supreme Court Justice Ruth Bader Ginsburg on the 1973 abortion decision Roe v. Wade. Many of these were previously published by Live Action News (here).

Ruth Bader Ginsburg

1985 in North Carolina Law Review 

Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” 

Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”  

Roe ventured too far in the change it ordered and presented an incomplete justification for its action.” 

“The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures… [who] 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….”  

Ginsburg acknowledged in her 1985 piece that,10 years after Roe, “Justice [Sandra Day] O’Connor… described the trimester approach [in Roe] as ‘on a collision course with itself.‘” Ginsburg added, “Advances in medical technology would continue to move forward the point at which regulation could be justified… and to move backward the point of viability….”

2009 interview with the New York Times Magazine  

Ginsburg made alarming comments, rightly suggesting that Roe was a product of eugenic philosophy

“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,” Ginsburg said.  

2013 Harvard Law  School

Ginsburg was answering whether court decisions create a “backlash” 

 “I don’t think that the anti-abortion movement – that it was just Roe v. Wade. I mean that movement existed before Roe v. Wade – it existed after. I do think that the court’s, the way the Court went about reaching its decision did give them a target that they can aim at that they didn’t have before. But, that the Court decisions is hardly what created – the movement. 

“I should say because I’ve been criticized “she’s against Roe v Wade” no I’m not. I’m very much for the judgement that the court rendered. Dealing with what was the most extreme law in the country [Texas case] where a woman could get an abortion only if it was necessary to save her life…The Court easily could have said we’ll deal with the Texas law – that’s what [is] before us – we’ll declare that unconstitutional…But, we then put our pen down and we wait for the next case which is how the Court usually operates. 

“This is an unusual judicial decision because it made every law in the country – even the most quote liberal – unconstitutional in one fell swoop.  And, that’s not the way the Court ordinarily operates. So, that’s was my critique not of the judgement but of the giant step that the Court took instead of proceeding by slow degrees. ” 

2014 Ginsburg to audience at International Women’s Health Coalition anniversary dinner 

She suggested that had the Supreme Court only ruled Texas’s abortion law unconstitutional and waited for additional cases, the American public might not have become so polarized about the issue. 

Ginsburg considered Texas’s abortion law the “most extreme law in the nation” because it outlawed abortion for all reasons except to save the mother’s life.

“[A] movement against access to abortion for women grew up, flourished, around a single target. And what was that target? It was nine unelected judges [who] decide[d] this question for the nation. It should be decided by the people’s elected representatives. By the members of the state legislature.”

She pointed to the “backlash” over Roe which came immediately and in her view, “took on steam” because of Roe’s “unelected Supreme Court judges.”

“That was the problem.” she concluded.

2014 interview with Cosmopolitan Magazine:

“You give it to them softly. And you build them up to what you want,”suggesting that this sort of pro-choice incrementalism would have been better received by the public.   

2016 interview w/ Charlie Rose: 

She reiterated this with Charlie Rose in 2016. “…One step at a time…no giant step…”

“Roe v Wade made every restrictive law in the country –  even the most liberal law – unconstitutional in one fell swoop – the Court had done it all. So, the people who favored a women’s decision – they won – they kind of retreated and the other side had… a target to rally around. And they could hit at that target and accuse the unelected justices of the Supreme Court of having made a major policy decision.” 

She goes on to explain that SCOTUS decisions should be a “conversation” with lawmakers. 

2020 Dave Rubenstein Show Interview:

“The Court had an easy target because Texas law was the most extreme in the nation…

“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. And that was not the way that the Court ordinarily operates. It waits to the next case and the next case.”

Ginsburg’s seat was not always held by pro-abortion justice:

Despite claims by abortion advocates, Ginsburg replaced a Justice who dissented in the Roe v. Wade decision.

According to USA Today, President Bill Clinton nominated Ginsburg to the court on June 14,1993. The Senate received the nomination on June 22 and voted to confirm her just 42 days later, on August 3. Ginsburg took her seat on the high court the next week, on August 10.

Ginsburg actually replaced Justice Byron R. White who dissented in the Roe v Wade decision – therefore – her seat is not guaranteed to a radical abortion enthusiast. 

White wrote in part:

“At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons – convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. 

 ” …With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 179, 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. 

“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”