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Tipsheet

Even the Late Ruth Bader Ginsburg Knew Roe v. Wade Was Hot Garbage

AP Photo/Caron Creighton

No, this doesn’t mean the late Justice Ruth Bader Ginsburg, who her die-hard supporters affectionately call “Notorious RBG,” is anti-abortion. She wasn’t pro-life at all. Yet, she was someone who you could probably get along with despite having differing views, a rarity nowadays. You saw that with her friendship with the Scalia family. She recognized that court packing was a terrible idea. And now that Roe v. Wade is about to be overturned in the Dobbs abortion case, we’re rehashing her criticism of the decision. She seems to have known that the ruling wouldn’t last forever. It’s a pile of hot garbage. She didn’t use those words but noted that the ruling was too much and too fast regarding abortion restrictions. 

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“Doctrinal limbs too swiftly shaped may prove unstable,” she said during a 1992 lecture at New York University. Again, she’s no Susan B. Anthony follower here (via NYT):

The ruling [Roe v. Wade], she noted in a lecture at New York University in 1992, tried to do too much, too fast — it essentially made every abortion restriction in the country at the time illegal in one fell swoop — leaving it open to fierce attacks.

“Doctrinal limbs too swiftly shaped,” she said, “may prove unstable.”

It was because of her early criticism of one of the most consequential rulings for American women that some feminist activists were initially suspicious of her when President Bill Clinton nominated her for the Supreme Court in 1993, worried that she wouldn’t protect the decision.

Of course, they eventually realized that Justice Ginsburg’s skepticism of Roe v. Wade wasn’t driven by a disapproval of abortion access at all, but by her wholehearted commitment to it.

The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg.

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Okay, well, if we’re going down this road, we should be clearer here about RBG’s argument—what she would argue here (via Newsweek):

Ginsburg believed "it would have been better to approach it under the equal protection clause" so Roe v. Wade would be less vulnerable to attempts to have it disbarred.

"Roe isn't really about the woman's choice, is it?" Ginsburg told the University of Chicago Law School in May 2013. "It's about the doctor's freedom to practice...it wasn't woman-centered, it was physician-centered."

Ginsburg also expressed concerns in the 1992 NYU lecture that the sweeping nature of Roe v. Wade should have originally focused on striking down a Texas law that "intolerably shackled a woman's autonomy" by only allowing abortion to be performed if the mother's life is in danger.

"Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force," Ginsburg said.

"Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why [it] might have served to reduce rather than to fuel controversy."

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Hey, look, you may disagree—and you have a right to—but this is a bit more level-headed than the insanity we’re seeing now from pro-aborts about this upcoming ruling. The irony about all of this is that for one to make Ginsburg’s new argument by like-minded folks—you’d have to start new. You’d have to scratch out Roe v. Wade. The late Justice Antonin Scalia was a stare decisis follower, except in this case because he felt Roe was decided so wrongly. 

There has been a slew of articles that noted we were already heading for a democratic consensus on abortion before Roe nuked it. A ballot box and a legislature are how you keep society up to date. Right now, the Senate is going to push that we codify legal abortion. That’s what should have been the liberal go-to from the start. There is nothing in the Constitution about abortion. It doesn’t prohibit it. Pass a law if you want the right, but you see that takes time and effort. That also requires some serious linguistic gymnastics since killing babies might not poll well. And like with all rights here, there will be restrictions—and restrictions are popular on abortion. Sixty percent of women support a ban on abortion after 20 weeks. It goes higher after that; late-term abortion is super unpopular. This is a debate that is emotional, intense, and loaded with grey areas. There’s nuance here, but the Left would rather be lazy and say that RBG just should have retired to save Roe. 

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