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Justice Ginsburg again talks about abortion and Roe v. Wade

by | Sep 17, 2013

By Dave Andrusko

Justice Ruth Bader Ginsburg interviewed by John Hockenberry

Justice Ruth Bader Ginsburg interviewed by John Hockenberry

Pro-abortion Supreme Court Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, gave an interview last week to John Hockenberry of “The Takeaway” which aired Monday. The full transcript can read at www.thetakeaway.org/story/transcript-interview-justice-ruth-bader-ginsburg.

Speaking of takeaways, here are my three takeaways from a truly interesting interview.

#1. Hockenberry asks Justice Ginsburg about the many decisions (of which she was a key player) that “changed discrimination law for women” and ends with how they “chang[ed] the Constitution.” Ginsburg politely rebuked him:

“I didn’t change the constitution; the equality principle was there from the start. I just was an advocate for seeing its full realization. Where we started out even the Declaration of Independence starts out all men are created equal, so I see my advocacy as part of an effort to make the equality principle everything the founders would have wanted it to be if they weren’t held back by the society in which they lived and particularly the shame of slavery…”

Would it not be a blessing—and a logical extension of her answer—if Ginsburg extended the equality principle to the unborn?

#2. As part of the same answer, Justice Ginsburg elaborates on the idea of how changes (real and imaginary) in the larger culture influence the Justices.

“A great constitutional scholar Paul Freund once said that ‘the Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era,’ and that’s what happened in the 1970s. Judges had daughters and granddaughters and they began to recognize that some of, some of the so-called favors for women were not favors at all but they were locking women into a small piece of men’s wide world. So it was the change in society that opened the Courts eyes and made my arguments palatable when they would not have been a generation before.”

That’s an intriguing insight. In a 2009 interview Ginsburg answered her own rhetorical question about why the Court’s position had changed on a particular set of issues. “The Court switched because society had changed,” she said, adding “I’ve often said the Court never leads.”

Well, you might ask yourself how justices distinguish the “weather” (presumably something that is passing) from the “climate” (larger, more enduring changes).

What can happen is that justices wet their fingers and from that determine which way the winds are blowing. In fact they may easily misgauge the direction, mistaking their own policy preferences for what is really taking place in the larger culture. Which is only one reason it is comical to say the Supreme Court never leads.

One of our tasks is to help the justices see there are many “winds” approaching hurricane gust level that are fiercely blowing in the direction of life and in the process revealing truths long obscured.

#3. Ginsburg has long talked about Roe v. Wade and abortion and what might be called tempo. She has not a single pro-life metacarpal in her body, but Ginsburg often argues that it would have placed the “right” to abortion on surer footing if instead of getting everything in one fell swoop once (in Roe v. Wade and Doe v. Bolton), abortion litigants had won more gradually. (She seems to believe the Pro-Life Movement would not have become what it has had it not been for the shock [my word] of Roe and Doe.)

In that context Hockenberry asks the following about Roe/Doe and the absence of any female justices on the Court in 1973:

JH: You’ve delivered very famous critiques of the Roe v. Wade decision. In a slightly narrower question, I wonder if you feel that a woman on that Court would have resisted making a decision so clinical in the way that it described first trimester, second trimester, third trimester, that sort of thing.

RBG: There was a later case called Casey in which Justice O’Connor did participate in this kind of very different tone. It centered on the woman, not on the doctor-patient relationship, and it isn’t divided into trimesters. So I think looking back from that decision we can say yes, if Justice O’Connor had been on that Court maybe she would have influenced the way the decision was explained.”

It is true that Roe/Doe’s author, Harry Blackmun, who had served as legal counsel for the Mayo Clinic, talked more about abortion in the framework of a physician’s “right” to practice the medicine he feels is appropriate than about a woman’s “right” to abortion. Obviously, I do not know Justice O’Connor’s heart but no one can know how Justice O’Connor would have affected the decisions, if at all.

What we can say is that Casey was handed down 19 years after Roe was and it was a case decided in a much different set of circumstances. Time had long since outpaced/invalidated Roe’s trimester framework (not that it ever made any sense to begin with).

As I said at the beginning you can read the transcript at www.thetakeaway.org/story/transcript-interview-justice-ruth-bader-ginsburg.

Categories: Judicial