Given the revelations surrounding a leaked Supreme Court opinion draft, late U.S. Supreme Court Justice Ruth Bader Ginsburg’s concerns about Roe v. Wade and its susceptibility to challenge may have been proven correct.
According to the alleged internal document obtained by newspapers, the conservative-majority SCOTUS has provisionally approved striking down the landmark 1973 ruling that ensures abortion is a constitutional right throughout the country, as well as a subsequent 1992 decision, Planned Parenthood v. Casey, which largely upheld the decision.
While it may appear unlikely, Ginsberg, the pioneering advocate for women’s rights who died in September 2020 at the age of 87, was a vocal critic of Roe v. Wade, particularly its framing and the haste with which it was implemented. Ginsberg noted in a widely quoted lecture she gave at New York University in 1992 that Roe was an example of how “doctrinal limbs too swiftly shaped…may prove unstable.”
Ginsburg was essentially disagreeing with Roe’s fundamental argument that the right to abortion was based on a woman’s privacy with her doctor, rather than a violation of equal protection as guaranteed by the Constitution.
Justice Samuel Alito wrote the majority draft opinion, which may still change before the Supreme Court’s final ruling in late June, stating that the sweeping decision to legalize abortion nationwide was “egregiously wrong from the start.”
“Its reasoning was extremely weak, and the decision had negative consequences.” And, rather than bringing about a national resolution to the abortion issue, Roe and Casey have fueled debate and deepened division,” Alito added.
In a September 2020 interview with The New York Times, Mary Hartnett, a Georgetown University law professor who co-wrote the Ginsberg biography My Own Words, said 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 overturned.
Ginsberg also expressed concerns in the 1992 NYU lecture that the sweeping nature of Roe v. Wade should have been initially focused on overturning a Texas law that “intolerably shackled a woman’s autonomy” by only allowing abortions if the mother’s life was in danger. If the draft opinion is confirmed and does not change, each state will be free to decide whether to restrict or prohibit abortion.
As The Washington Post reported in August, a number of anti-abortion activists have used Ginsberg’s remarks to argue that Roe v. Wade and Planned Parenthood v. Casey should be overturned.
“Far from bringing peace to the abortion controversy, Roe and Casey have exacerbated matters,” Mississippi Attorney General Lynn Fitch wrote in a brief attempting to pass a law that would ban virtually all abortions in the state after only 15 weeks, citing Ginsberg’s own words. Ginsberg was chastised near the end of her life for not retiring from the Supreme Court so that she could be replaced by a liberal judge during Barack Obama’s presidency, thereby helping to keep Roe v. Wade in place.
According to Mary Ziegler, a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present, attempts to use Ginsberg’s objections to oppose the 1973 ruling would never have happened while the judge was still alive.
Ginsberg was asked what she thought would happen if Roe v. Wade was overturned at the University of Chicago Law School in May 2013. The judge added that several states in the U.S. would never ban the procedure, which means that poor women from anti-abortion states would be the ones who suffer the most.
