Justice Ginsburg’s Right About Roe, Wrong About Solution

Several people have e-mailed me today to ask what I thought about Ruth Bader Ginsburg’s comments about the Roe v Wade decision in today’s New York Times.

“The court bit off more than it could chew,” Justice Ginsburg said in remarks after a speech at Princeton in October. It would have been enough, she said, to strike down the extremely restrictive Texas law at issue in Roe and leave further questions for later cases.

“The legislatures all over the United States were moving on this question,” she added. “The law was in a state of flux.”

Roe shut those developments down and created a backlash that lasts to this day.

“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” Justice Ginsburg said. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”

It’s also old news that Ginsburg believes, as many others have said over the years that the Court’s decision in Roe leapfrogged over public opinion that was heading in the prochoice direction anyway, so they should have just waited for the legislative process to work.

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