sunday, may 8 , 2022. the washington post EZ RE A27
BY FREDERIC J. FROMMER
The Supreme Court probably
wouldn’t have the votes to over-
turn the right to abortion in Roe
v. Wade, as a leaked draft opinion
proposes, if Justice Ruth Bader
Ginsburg were still on the court.
But Ginsburg was not a fan of the
reasoning behind the 1973 ruling.
Ginsburg, who died in 2020,
criticized the 7-to-2 decision both
before and after she joined the
high court. She argued that it
would have been better to take a
more incremental approach to
legalizing abortion, rather than
the nationwide ruling in Roe that
invalidated dozens of state anti-
abortion laws. She suggested a
ruling protecting abortion rights
would have been more durable if
it had been based on the Equal
Protection Clause of the Constitu-
tion — in other words, if it had
focused on gender equality rather
than the right to privacy that the
justices highlighted.
Ginsburg actually didn’t think
Roe was the best case for estab-
lishing abortion rights. She
would have preferred a case she
worked on as a lawyer for the
American Civil Liberties Union in
the early 1970s.
In that case, Ginsburg repre-
sented an Air Force captain who
became pregnant while serving
as a nurse in Vietnam. In a twist,
Ginsburg championed the wom-
an’s right not to have an abortion;
an Air Force rule at the time
dictated that pregnant women
had to terminate their pregnan-
cies or be discharged.
Ginsburg challenged the rule
on behalf of the woman, Susan
Struck, in a case called Struck v.
Secretary of Defense and won a
stay preventing Struck’s dis-
charge while the courts reviewed
the case. In December 1972, two
years after Struck gave birth to a
baby and shortly after the Su-
preme Court agreed to hear the
suit, the military changed the
policy and let Struck remain on
active duty.
The court agreed to drop the
case as moot. The following
month, it issued its Roe v. Wade
ruling.
“The idea was: ‘Government,
stay out of this,’ ” Ginsburg said of
the Air Force case at a University
of Chicago Law School conversa-
tion on the 40th anniversary of
Roe in 2013. “I wish that would
have been the first case. The court
would have better understood
this is a question of a woman’s
choice.”
Roe v. Wade, which challenged
a Texas law that banned abortions
except to save the mother’s life,
invalidated all state laws that
prohibited abortion and estab-
lished a constitutional right to
the procedure. At the law school
event, Ginsburg argued that thecourt should have deemed the
Texas law unconstitutional with-
out such a sweeping ruling.
That would have led to a gradu-
al relaxation of abortion bans on
a state-by-state basis, she said,
and advanced the democratic
process.
“My criticism of Roe is that it
seemed to have stopped the mo-
mentum on the side of change,”
she said, adding that the decision
gave “opponents a target to aim at
relentlessly.”
Geoffrey R. Stone, a professor
and former dean of the University
of Chicago Law School who con-
ducted the 2013 discussion with
Ginsburg, said in an email this
week that a main source of her
concern about Roe was that it
went too far, too fast.
“She felt that a more incremen-tal approach would be less likely
to trigger what became the ex-
treme political opposition to Roe,”
he said.
Ginsburg made a similar argu-
ment in 1992, a few months be-
fore President Bill Clinton nomi-
nated her to the Supreme Court.
“Doctrinal limbs too swiftly
shaped, experience teaches, may
prove unstable. The most promi-
nent example in recent decades is
Roe v. Wade,” Ginsburg said at a
New York University Law School
lecture.
“A less-encompassing Roe, one
that merely struck down the ex-
treme Texas law and went no
further on that day ... might have
served to reduce rather than to
fuel controversy,” she added.
From 1971 to 1982, she said, the
high court invalidated state andfederal laws for violating due
process or equal protection prin-
ciples.
“The Supreme Court wrote
modestly, it put forward no grand
philosophy; but by requiring leg-
islative reexamination of once-
customary sex-based classifica-
tions, the court helped to ensure
that laws and regulations” would
reflect a changing world, she said,
according to her prepared re-
marks.
She added, “Roe v. Wade, in
contrast, invited no dialogue with
legislators. Instead, it seemed en-
tirely to remove the ball from the
legislators’ court. In 1973, when
Roe v. Wade was issued, abortion
law was in a state of change
across the nation. As the Supreme
Court itself noted, there was a
marked trend in state legislatures‘toward liberalization of abortion
statutes.’ ”
Ironically, conservative colum-
nist George F. Will has made a
similar argument. In a 2003 col-
umn, he wrote that the Supreme
Court had tried to end the debate
about abortion with its decision
in Roe.
“Instead, it inflamed the issue
and embittered our politics —
because the court, by judicial fiat,
abruptly ended what had been a
democratic process of accommo-
dation and compromise on abor-
tion policy,” he wrote.
“Before the court suddenly dis-
covered in the Constitution a
virtually unlimited right to abor-
tion, many state legislatures were
doing what legislatures are sup-
posed to do in a democracy: They
were debating and revising laws
to reflect changing community
thinking.”
Mary Hartnett, a Georgetown
University law professor who is
co-authoring an authorized biog-
raphy of Ginsburg, told the New
York Times in 2020 that the jus-
tice thought the Supreme Court
made a mistake in Roe by relying
on the right to privacy. Ginsburg
“believed it would have been bet-
ter to approach it under the Equal
Protection Clause,” said Hartnett,
who spent 17 years interviewing
Ginsburg with her co-author,
Georgetown Law professor emer-
ita Wendy Webster Williams.
But Stone, the University of
Chicago Law School professor,
said the Supreme Court didn’t
have the votes for that position in- Stone was a clerk for Justice
William J. Brennan at the time.
“She was a strong advocate for
the position that the Equal Pro-
tection Clause should prohibit
laws that discriminate against
women,” Stone said. “Unfortu-
nately, at the time Roe was decid-
ed, we could not get five votes for
that position. Thus, there was no
way that the Equal Protection
Clause could be used at that time
to resolve Roe.”
He added that the justices on
the court in 1973 — who were all
men — “were skeptical of the
argument that a law that treated
men and women differently be-
cause they were biologically dif-
ferent, as in the pregnancy issue,
would violate equal protection.”
Retropolis
Ginsburg thought Roe was wrong case to settle abortion
She’d have preferred an
incremental approachover sweeping 1973 order
Marcy Nighswander/Associated Press
“It seemed to have stopped the momentum on the side of change,” said Supreme Court Justice Ruth Bader Ginsburg about Roe v. Wade.50% OFF
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