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.”

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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.

Seems to me that if you buy that, then you would also buy the notion that the court should not have decided Brown v Board of Education when they did, and in both cases you would be totally wrong from a social justice perspective.

If your goal is not to upset the applecart, then maybe you could make the argument that Roe was too much too soon. But as they say, justice delayed is justice denied. And pray tell, why should women so often be the ones who are told they should wait?

Ginsburg has long been on record also that she thinks the Roe decision wasn’t a sustainable one because it wasn’t based in women’s rights but in privacy. I agree with her completely on that score and in the interest of efficiency, here’s a link to an article I wrote for Democracy Journal on why Roe was necessary but not sufficient, and why I believe we must build a human rights basis for reproductive justice legally and culturally.

Interestingly, the article in which Ginsburg was quoted about Roe today was relating the “wait till the legislatures catch up with you” the same notion to gay rights an same sex marriage. And it’s just as wrong-headed there as it is in regard to any other civil right, if for no other reason than American citizens shouldn’t have to deal with a patchwork of state laws where some states respect them as equal citizens and some don’t.

And she shares her opinions on why she thinks it is appropriate for the U.S. to consider rulings by foreign courts in its decisions in another Times article today. Perhaps she might want to take a look at Supreme Courts in countries such as Mexico that are increasingly ruling in favor of reproductive rights to see that the U.S. is in good company.


  1. Beth Corbin on April 13, 2009 at 4:40 pm

    It’s sort of like suggesting the Emancipation should have taken place plantation by plantation.

  2. Gloria Feldt on April 13, 2009 at 4:40 pm


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