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Justice Ginsburg, Roe v. Wade and Same-Sex Marriage

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I had the honor of having a public "conversation" yesterday with Justice Ruth Bader Ginsburg before a large audience at the University of Chicago Law School. The topic of the event was the 40th Anniversary of Roe v. Wade. Justice Ginsburg offered many interesting observations about the women's rights movement, in which she herself was a pivotal actor. But I suspect some of her reflections on Roe v. Wade must have surprised the audience.

Because Justice Ginsburg has always been a strong proponent of a woman's right to choose, members of the audience undoubtedly expected her to celebrate Roe v. Wade as one of the great achievements in the history of the Supreme Court. Instead, she was quite critical of the decision.

Justice Ginsburg's critique of Roe is especially interesting at this moment because it has implications for the same-sex marriage cases currently pending before the Court. Of course, Justice Ginsburg did not herself draw any such parallel, and it would have been inappropriate for her to do so. But the connection could not have been lost on the audience.

As it happens, I disagree strongly with Justice Ginsburg's take on Roe. Perhaps the most surprising facet of Justice Ginsburg's critique of Roe is her claim that the Court in Roe went "too far, too fast." Until the 1960s, every state made abortion a crime unless it was necessary to save the life of the woman. In the late 1960s and early 1970s, however, in large part because of the women's movement, several states began to ease their restrictions on abortion, and four states went so far as to legalize abortion in the first twenty-four weeks of pregnancy.

When the Court decided Roe in January of 1973, it held that a woman has a constitutional right to control her own body and to make decisions for herself about such a fundamentally personal matter as whether to bear a child. The Court therefore held that laws prohibiting abortion in the first twenty-four weeks of pregnancy are unconstitutional. Roe invalidated the abortion laws of almost every state in the nation. It had an immediate and dramatic effect on the freedom of women to terminate unwanted pregnancies.

Justice Ginsburg argued that the Court in Roe v. Wade should have been more modest in its decision. It should have held only that the Texas law before it in Roe, which prohibited abortion unless necessary to save the life of the woman, was unconstitutional, leaving for the future the question of what other restrictions on abortion might be constitutional. By instead reaching out to decide the much more broader question - whether any prohibition of abortion is constitutionally permissible in the first twenty-four weeks - the Court, in her view, short-circuited the democratic process and failed to allow the states to work out for themselves how best to regulate abortion.

Justice Ginsburg's objection is that, by issuing so bold and far-reaching a decision, the Court infuriated the opponents of choice and triggered a bitter and divisive response among the Moral Majority and conservatives more generally, a response that has polarized the nation to this day. Put simply, Justice Ginsburg argued that Roe v. Wade triggered a political "backlash" that not only poisoned American politics but also energized the resistance to abortion and thus undermined the very goals that Roe sought to achieve.

If this understanding of Roe has force, then it does seem to suggest that the Supreme Court should go slow on the issue of same-sex marriage, because a decision holding that same-sex couples have a constitutional right to marry might trigger a similar reaction to the one arguably triggered by Roe. Were that to happen, it could further polarize the political process, damage the Court as an institution, and frustrate the long-terms interests of gays and lesbians.

The problem, in my view, is that Justice Ginsburg is wrong in her assessment of Roe. This is so for several reasons. First, it is important to remember that at the time Roe v. Wade was decided it was not thought to be a particularly difficult or ideological decision. The vote was seven-to-two, and three of Richard Nixon's four "conservative" nominees to the Court supported the decision, including Chief Justice Warren Burger.

Although the Catholic Church, which had strenuously opposed abortion well before Roe, was vigorous in its condemnation of the decision, the vast majority of Americans supported it. Indeed, at the time Roe was decided, Americans by a two-to-one margin agreed that "the decision to have an abortion should be made solely by a woman and her physician," and even 56 percent of Catholics agreed with this proposition. When Justice John Paul Stevens was nominated to serve on the Supreme Court in 1975, not a single senator asked him about Roe. In short, Roe itself did not produce a "backlash."

What did produce the political polarization over abortion and other so-called "social issues" was the effort of Republican Party strategists, both before and after Roe, to use the issue of abortion to pry Catholic voters away from their traditional home in the Democratic Party and to energize Evangelicals by portraying the Democrats as the party that opposed school prayer and promoted the teaching of evolution, equal rights for women, abortion and "sex, drugs and rock 'n roll." These Republican strategists, particularly in the Reagan era, successfully brought these social issues to the very heart of American politics. But it was not Roe that caused this state of affairs.

Second, Justice Ginsburg suggested that just as no-fault divorce swept the nation at more or less the time as Roe, the same might have happened with abortion. That is, left to their own devices, and without the Supreme Court's bold intervention, the states themselves might eventually have liberalized their abortion laws through the process of democratic decision-making. On that view, Roe v. Wade was unnecessary.

This seems to me unrealistic in the extreme. Even by 1973 the gradual movement towards more liberal abortion laws had slowed, and it is difficult to believe that most states would have come around to the liberalization of abortion anytime soon. The obvious difference between no-fault divorce and abortion in terms of the depth of feeling about the status of the fetus renders the no-fault divorce analogy unpersuasive. The plain and simple fact is that the same factors that have generated fervent opposition to abortion for the past forty years would have played out in more or less the same way with or without Roe v. Wade.

Third, even if the Justices at the time of Roe had been able to anticipate that the decision would cause a "backlash," it is not at all clear that they should have given this much weight in deciding what the Constitution in fact means. The essential nature of constitutional rights is that they protect fundamental personal liberties even though others do not want to recognize them. In that sense, the Constitution is necessarily counter-majoritarian. If majorities could be counted upon to protect constitutional rights, we wouldn't need a Bill of Rights.

For the Supreme Court to have failed to protect what the justices themselves firmly believed to be the constitutional right of a woman to terminate an unwanted pregnancy because of a fear that recognizing that right would anger other citizens would have been a complete betrayal of their most fundamental responsibility as interpreters of the Constitution. Moreover, had the Court in Roe taken a gradualist approach and allowed the democratic process to work its way pure over the next ten or twenty years, many millions of women would have needlessly faced the cruel dilemma of either risking dangerous back-alley abortions or carrying to term millions of unwanted children. This is too great a price to pay for judicial incrementalism, especially after seven of the justices had concluded that such a right in fact exists.

Finally, Justice Ginsburg opined that even if Roe v. Wade had never been decided, a woman who could not legally get an abortion in her own state of residence would have been able to hop on a bus, train or plane and have an abortion in a state in which abortion was legal. On this view, Roe was unnecessary. As I expressed in our "conversation," I found this an odd argument to make in the realm of constitutional rights.

In any event, it is worth noting that this argument, whatever its merit in the abortion context (and I don't think it has much), has no bite in the context of same-sex marriage. If Alabama refuses to recognize a same-sex marriage performed in New York, then the ability of Alabama residents to go to Massachusetts to get married is of no value to them when they return to Alabama. Abortion is different. A resident of Alabama can travel to New York for an abortion and return home no longer pregnant. A same-sex couple can travel to New York, marry, and return home to Alabama with no change in their legal status under Alabama law.

I am a great admirer of Justice Ginsburg. But in her criticisms of Roe v. Wade, I must dissent. Roe transformed the lives of tens of millions of women in this nation. It was the right decision . . . and its time had come.

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