Supreme Court Justice Ruth Bader Ginsburg, an abortion rights advocate,
says that the court's Roe v. Wade decision in 1973 was overreaching and
became too big a “target” for pro-life supporters.
“That was my concern, that the court had given opponents of access to
abortion a target to aim at relentlessly,” Ginsburg said in a talk May
11 at the University of Chicago Law School.
“My criticism of Roe is that it seemed to stop momentum on the side of change.”
Ginsburg, who was appointed to the Supreme Court by President Clinton in
1993, has long been an outspoken supporter of legal abortion, and the
comments made at the University of Chicago are the latest in a series of
criticisms of Roe in recent years.
The event was a roughly 90-minute conversation, according to the Chicago
Tribune, between Ginsburg and Edward H. Levi, a professor at the Law
School, marking the 40th anniversary of the decision.
Ginsburg noted that in the 40 years since Roe v. Wade, pro-life
advocates have successfully introduced restrictions on abortion access
in many states, and that cases related to abortion now focus on
“restrictions to access, not expanding the rights of women.”
The decision in Roe v. Wade concerned the constitutionality of a Texas
law that prohibited abortion except if it was considered necessary to
save the mother's life. The court's decision attempted to balance
women's and doctors' right to privacy with state interests in protecting
women's health and pre-born life.
Ginsburg said the decision “covered the waterfront” and finally rested
more on physician's rights to privacy than on “women's rights.”
“It's about a doctor's freedom to practice his profession as he thinks
best. It wasn't woman-centered. It was physician-centered,” she said.
Ginsburg would have preferred a narrower decision which struck down only
the Texas law, rather than giving guidelines for abortion regulation by
trimester, broadly legalizing the procedure. She considers that such
“judicial restraint” would have allowed for a wider expansion of
abortion access through legislative means.
“The court can put its stamp of approval on the side of change and let
that change develop in the political process,” Ginsburg stated.
She indicated that she would prefer that the landmark ruling on abortion
have been Struck v. Secretary of Defense. That case was decided was
decided by an appellate court in 1972. It concerned an Air Force captain
who became pregnant while serving in Vietnam.
The woman was faced with either leaving the military or having an
abortion, but the case did not reach the Supreme Court because the Air
Force changed its policy regarding pregnancy.
In that case, “the idea was: 'Government … stay out of this,'” Ginsburg
said. “I wish that would have been the first case. The court would have
better understood this is a question of a woman's choice.
Even were Roe overturned, in Ginsburg's view, it's effect is secure.
“It's not going to matter that much. Take the worst-case scenario ...
suppose the decision were overruled; you would have a number of states
that would never go back to the way it was.”
The Supreme Court Justice's comments come amid a legacy of anti-abortion
legislation that Roe has encouraged in the last 40 years. In 2013
alone, two state legislatures have passed expansive anti-abortion laws.
Last March, North Dakota passed three pro-life bills.
The new laws
include bans on abortions performed after a fetal heartbeat is
detectable – currently around 12 weeks – and bans on abortions that
target the unborn child on the basis of sex or genetic abnormalities.
The same month, Arkansas legislators overrode a veto by the state
governor, ensuring that in the state abortions will be banned after 12
weeks, also based on the detection of fetal heartbeat by ultrasound.
A
separate law in the state banned abortion after 20 weeks, the point at
which the unborn can feel pain.