NRL News

Justice Ginsburg revisits strategy behind Roe where “nine unelected judges” decided the abortion issue for the entire nation

by | Sep 11, 2014


By Dave Andrusko

Supreme Court Justice Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg

It seems as if every few months pro-abortion Supreme Court Justice Ruth Bader Ginsburg gives a speech and/or interview in which she talks about how if only the Supreme Court had reached the same decision it did in Roe but over time, step by step, “the public would have reacted in a more positive way than it did,” as she told Jill Filipovic of Cosmopolitan this week.

This is what I have previously described as the “tempo” argument. Justice Ginsburg has not a single pro-life metacarpal in her body, but she often argues that it would have placed the “right” to abortion on surer footing if instead of getting everything in one fell swoop (in Roe v. Wade and Doe v. Bolton), abortion litigants had won more gradually.

Did Ginsburg add anything new Tuesday night following the anniversary dinner for the International Women’s Health Coalition? Let’s see.

She recycled her argument that Roe/Doe crystallized the Pro-Life Movement by establishing a “target.” Ginsburg told Filipovic

“Roe v. Wade, that case name is probably the best-known case of the second half of the 20th century. And a movement focused on ending access to abortion for women grew up, flourished, around that one target. Nine unelected judges decided that one issue for the nation.”

Last year, in a speech, Ginsburg remarked, “And that’s not the way the Court ordinarily operates.”

Likewise her concurrence, expressed many times before, that the Texas law at issue in Roe should have been overturned. It’s not a “what” for her but a “how.” And Ginsburg reiterated that she had problems with the “how.” Filipovic writes

“the court’s decision to issue a sweeping judgment establishing the right to abortion in all 50 states was a strategically poor one and led to modern-day political battles over reproductive rights.

“’There might have been a backlash in any case,’ Ginsburg said. ‘But I think [because of Roe] it took on steam.’”

To be sure it’s Filipovic paraphrasing Justice Ginsburg, but shouldn’t it be unsettling that a Supreme Court decision would be judged on whether it was a ‘strategically’ smart one or not?

We all understand that Justice Blackmun’s turgid opinion was steeped in politics. So, too, with the lawyers that brought the case to the Supreme Court. As we posted the other day, the central claims in a law review article written by Cyril Means that Blackmun relied on so heavily were not true, as David Tundermann, a Yale law student and part of the team challenging the Texas law, warned in 1971.

We quoted scholar Justin Dyer who wrote that Tundermann concluded

”Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.”

So it is only appropriate to talk about politics and how Roe was a “strategically poor decision.”

In response to a question, Ginsburg reaffirmed what she had said at her 1993 confirmation hearing. “A woman’s control of her own body, her choice whether and when to reproduce, it’s essential to women and it’s most basic for women’s health.” The “health” of the unborn child is not even worth mentioning, even if only to deny its significance.

And like many older pro-abortion feminists, “Ginsburg worries that young women are complacent about their rights.” No, they are abortion “survivors” who have grown up in an era when the visibility of their unborn sisters and brothers is more evident each and every day.

As a final touch Ginsburg caricatures the “Hobby Lobby” decision to the point of absurdity. As NRLC pointed out last July, the ruling provided a modest victory for religious conscience rights but did nothing to truly correct any of the major abortion-expanding problems created by Obamacare.

But in Ginsburg’s hands, the decision could portend the day that companies can claim “they wouldn’t hire a woman without the permission of her husband or father, if that’s what their religion dictates.”

Does anyone believe that, even Ginsburg? Of course not, although this kind of reductio ad absurdum argument was essential to the dissent of four justices.

A much more realistic future scenario would start with the fact that what was at issue in Hobby Lobby was the attempt by Obama’s Department of Health and Human Services to force family-owned for-profit corporations to directly purchase health insurance covering certain drugs and devices that violate the employer’s religious and moral beliefs.

What would prevent HHS from issuing a further expansion of its “preventive services” mandate to require that most employers also provide coverage for surgical abortions, or for doctor-prescribed suicide, that would be just as expansive as the contraceptive mandate?

Ginsburg’s final observation is extremely telling. Filipovic writes

“Roe, she said, could serve as a lesson in how the judiciary is vulnerable to accusations that they lack accountability, and how perhaps more can be accomplished — and accomplished more calmly — incrementally, even in the social justice realm.

“’You give it to them softly,’ Ginsburg said. ‘And you build them up to what you want.’”

So….”accountability” for the ‘nine unelected justices” is when you snooker the public by obtaining the verdict you wanted all along, but doing so “softly.”

Now that, even by pro-abortion standards, is cynical.

Categories: Roe v. Wade