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.