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Ginsburg again questions Roe’s “timing”

Feb 14, 2012

By Dave Andrusko

Supreme Court Justice Ruth Bader Ginsburg — Feb. 10, 2012 photo provided by Columbia Law School

When Supreme Court Justice Ruth Bader Ginsburg spoke at a Columbia Law School symposium last Friday, most of the subsequent press attention focused on her surprising comment about countries in the Middle East and elsewhere contemplating the adoption of new constitutions. According to the Associated Press’ David Crary, Ginsburg said, “’If you’re writing a constitution today, are you going to look back at an 18th century model?’ [The American Constitution] Ginsburg asked, before citing such newer documents as South Africa’s 1996 constitution and Canada’s 1982 Charter of Rights and Freedoms.

But Ginsburg also revisited a topic she has spoken on before: the “timing” of the 1973 Roe v. Wade decision. “It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg told a symposium at Columbia Law School on the 40th anniversary of Ginsburg joining the faculty as its first tenure-track female professor.

Alluding to 39 years of fierce debate over abortion, Ginsburg said, “The court made a decision that made every abortion law in the country invalid, even the most liberal,” according to Crary.

Her comments are useful in two senses. First, Roe (and its companion case, Doe v. Bolton) overturned even the ultra-liberal laws of New York and Hawaii, for example. Thus, Ginsburg inadvertently dispels the myth that Roe (and its companion case Doe v. Bolton) ever legalized abortion only “in the first three months.”

Second, Ginsburg obviously belong to the “inevitability” camp. That is, had the Supreme Court lowered its ambitions in 1973, eventually all states—including those whose abortion statutes had survived abortion “reform”—would have collapsed. But an equally valid argument can be made that the abortion “reform” movement had plateaued by 1972.

But Ginsburg told her audience, . “We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained.”

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Categories: Roe v. Wade