There is Supreme irony (pardon the pun) in the fact that our political parties have given us a frightening and baffling turn of events on the issue of the court and abortion. Strategies that were deemed by some on the left as too radical and far-sweeping in 1973 are now being adopted as far-sighted by the Trump right.
Judge Ruth Bader Ginsburg thought that Roe v. Wade “tried to do too much, too fast — it essentially made every abortion restriction in the country at the time illegal in one fell swoop — leaving it open to fierce attacks.
“Doctrinal limbs too swiftly shaped,” she said, “may prove unstable.”
It was because of her early criticism of one of the most consequential rulings for American women that some feminist activists were initially suspicious when President Bill Clinton nominated her for the Supreme Court in 1993, worried that she wouldn’t protect the decision.
Of course, they eventually realized that Justice Ginsburg’s skepticism of Roe v. Wade wasn’t driven by a disapproval of abortion access at all, but by her wholehearted commitment to it.
The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality,” according to Mary Hartnett, a law professor at Georgetown University who was a co-writer on the only authorized biography of Justice Ginsburg.
“While it may seem unlikely, Ginsburg, the pioneering advocate for women’s rights who died in September 2020 at age 87, was a frequent critic of Roe v. Wade, especially its framing and the speed in which it was pushed through.”
Indeed, Ginsburg’s criticisms of Roe generally had to do with pragmatic and political concerns, rather than saying it was outright wrong. Far from wanting to leave this decision to the states, as the present court has done, “she repeatedly sided with the idea that abortion was a constitutional right. She had preferred that right to be phased in more gradually and that it rely more on a different part of the Constitution — the right to equal protection rather than the right to privacy, the basis of Roe.”
Fast forward to 2022, when there was a leak of Justice Samuel Alito’s draft memo on the fate of Roe v Wade. At first, he seemed to agree with Ginsburg, concurring that “Roe was ‘egregiously wrong’ from the start and its reasoning is ‘exceptionally weak.” But his conclusion was very different. He said, “It’s time the issue went back to the states: That is what the Constitution and the rule of law demand.”
“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” he added. Many — especially liberals like Justice Elena Kagan — warned of the dangers of overturning precedent, a move that shakes the stability of the law.
For Justice Alito, it was time for the court to butt out. “This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on,” he said. Alito closed by writing: “We end this opinion where we began. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”
Roe lasted almost 50 years. How unusual would it be to overturn it?
Court watchers on both sides of the issue were left flabbergasted by the leak, due the breadth of the opinion and the fact that it would forever change the landscape of women’s reproductive rights.
We now know what happened. Roe was overturned. We have a hodgepodge of disparate regulations: some states essentially outlawing all abortions with no exceptions for rape, incest, or the health of the mother; others, permitting some exceptions, but not others.
The result is chaos. So hold onto your hats: here is where the story gets really convoluted.
Justice Alito, in his majority opinion in Dobbs v. Jackson Women’s Health Organization, wrote that the Court’s decision would allow “each State to regulate abortion as its citizens wish.” Yet just three weeks after Roe was overturned, and with many Republicans agreeing that abortion was now an issue for the states to decide, GOP members in the house started calling for federal legislation that would ban abortions after a fetal heartbeat is detected.
Today, anti-choice activism focuses on ending any sort of legal abortion access across all 50 states. Thirteen states are now in the process of ending such access entirely through “trigger laws,” with many states seeking not only to ban abortion but to criminalize those who provide and seek abortion services.
This is where we are: Everything seems topsy-turvy. A Federal right to choose (Roe) led to a 50-year conservative crusade for states’ rights (confirmed by Dobbs) which has led, in turn, to a new call on the Trump-leaning right for a Federal ban on all abortions. Confusing? Indeed.
Senator Lindsey Graham answered the call. He offered up a bill that would ban abortions after 15 weeks of pregnancy. It includes exceptions for cases of rape, incest, and to save the life of the mother. The bill includes a claim that is not scientifically proven that fetuses can feel pain at that stage in development.
Some Republicans were shaken up when deep red Kansas voted down a complete ban on all abortions in the state in 2022. Such GOP legislators are leery of going back to the federal playing field where they just had a big win. They want to keep the focus strictly on the economy and inflation, which they see as winners.
As Politico notes, even among Republicans who personally support the bill, some say it’s a potential distraction from their 2024 election strategy. Since the Supreme Court’s decision, Republicans in both chambers have stuck to a carefully honed message: It’s up to individual states to decide its abortion policies. Roe, after all, was popular for a long time, with Americans 62 percent in favor at the time it was overturned. The GOP is split. The Trump wing of the party generally likes the federal route, and would probably try to make the ban stricter.
It took fifty years, but traveling the federal highway resulted in a major crash for pro-choicers at the end of the road, as Justice Ginsberg so often warned. A federal ban backed by the GOP could be trying to cross a bridge too far. Will anti-choice forces also find calamity on the federal highway?
In our topsy-turvy world, it’s hard to know.
About the Authors: Dr. Rosalind C. Barnett is a senior scholar at Wellesley College and Caryl Rivers is a professor of Journalism at Boston University. They are the authors of The New Soft War on Women. (Tarcher/ Penguin.)
