Direct from RBG

What’s wrong with Roe v.Wade?

Ruth Bader Ginsburg, the strongest civil libertarian to serve on the U.S. Supreme Court since Thurgood Marshall retired in 1991, believed the most famous reproductive freedom case of all time was decided correctly, but for the wrong reason.

She mentioned this at the University of Chicago Law School’s forum marking the 1973 decision’s 40th anniversary, and her remarks were reported in the law school’s online newsletter on May 15, 2013.

In fact, she said then and many times thereafter that she wished the 1972 case she took to the court, Struck v. Secretary of Defense, had become the first reproductive freedom case the Court had decided. As the plaintiff’s attorney, Ginsburg argued that a pregnant Air Force captain should not be made to either terminate her pregnancy or resign from the Air Force.

Her argument was an equal-rights argument based on the Equal Protection Clause of the Constitution’s 14th Amendment, which had not yet been applied to gender discrimination. The court accepted the case, but before the justices heard it, the Air Force changed its position and allowed Captain Struck to remain in the Air Force, rendering the case moot.

One year later, when the court decided Roe v. Wade, the plaintiff’s argument was grounded in the right to privacy rather than equal protection. The court’s majority included in its decision a lengthy summary of why there even was a right to privacy and, after additional analysis, wrote, “We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

According to Ginsburg, basing reproductive freedom on a privacy argument makes it physician-centered, not woman-centered, transforming the issue into being about a doctor’s freedom to practice. On the other hand, basing it on an equality argument places it firmly in the gender-discrimination arena.

In 1993, 20 years before her remarks in Chicago, she faced the Senate Judiciary Committee as part of her Supreme Court confirmation process. At that time, she endorsed a woman’s reproductive freedom, noting, “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.” Because the Equal Protection Clause had been applied to racial discrimination, Ginsburg thought it also should be applied to gender discrimination, including to decisions a woman might want to make about her own body.

It would seem preposterous to prevent a male from choosing treatment for medical issues only a male might encounter (prostate problems, testicular cancer), so it also should seem preposterous to prevent a woman from choosing treatment for medical issues only a woman might encounter (pregnancy, ovarian cancer).

After all, if someone needs a doctor to be involved, is it not a medical issue?

Ginsburg restated her egalitarian viewpoint many times during a series of interviews with Jeffrey Rosen from 2010-2019, which in 2019 became Rosen’s book, “Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law.”

In Chapter 3, titled merely “Roe,” she again characterized the Roe v. Wade decision as a doctor’s rights case with a weak argument, but she also said she was hopeful it would not be overturned.

Unfortunately, Ginsburg did not live to see current Supreme Court Justice Samuel Alito’s first draft of a majority opinion overturning Roe, leaked to the press in early May; however, in Rosen’s book she described how thenChief Justice William Rehnquist once saved another major ruling, Miranda v. Arizona, from being overturned, and she implied that because current Chief Justice John Roberts had clerked for Rehnquist, Roberts might save Roe.

Most likely, in late June or early July the country will find out if Roe will be overturned. If it is, Justice Ginsburg’s criticism of the privacy rationale behind Roe will be vindicated.

If it isn’t, her cautious hope about Chief Justice Roberts may deserve posthumous kudos.