In an astonishing admission, U.S. Supreme Court Justice Ruth Bader Ginsburg says she was under the impression that legalizing abortion with the 1973 Roe. v. Wade case would eliminate undesirable members of the populace, or as she put it “populations that we don’t want to have too many of.”
Her remarks, set to be published in the New York Times Magazine this Sunday but viewable online now, came in an in-depth interview with Emily Bazelon titled, “The Place of Women on the Court.”
The 16-year veteran of the high court was asked if she were a lawyer again, what would she “want to accomplish as a future feminist legal agenda.”
Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.
Question: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?
Ginsburg: Yes, the ruling about that surprised me. [Harris v. McRae – in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
When pressed to explain what she meant by reproductive rights needing to be straightened out, Ginsburg said, “The basic thing is that the government has no business making that choice for a woman.”
Asked if that meant getting rid of the test the court imposed, in which it allows states to impose restrictions on abortion such as a waiting period, the justice said she was “not a big fan of these tests.”
I think the court uses them as a label that accommodates the result it wants to reach. It will be, it should be, that this is a woman’s decision. It’s entirely appropriate to say it has to be an informed decision, but that doesn’t mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.
I still think, although I was much too optimistic in the early days, that the possibility of stopping a pregnancy very early is significant. The morning-after pill will become more accessible and easier to take. So I think the side that wants to take the choice away from women and give it to the state, they’re fighting a losing battle. Time is on the side of change.
Actual artist rendition of Supreme Court Justice Ginsburg asleep during a hearing in 2006
Three years ago, Ginsburg received some embarrassing national attention when she napped on the bench during a court hearing.
“Justices David Souter and Samuel Alito, who flank the 72-year-old, looked at her but did not give her a nudge,” reported Gina Holland of the Associated Press.
The incident caught the attention of Washington Post columnist Dana Milbank, who said:
“At first, she appeared to be reading something in her lap. But after a while, it became clear: Ginsburg was napping on the bench. By Bloomberg News’ reckoning – not denied by a court spokeswoman – Ginsburg’s snooze lasted a quarter of an hour.
“It’s lucky for Ginsburg that the Supreme Court has so far refused to allow television in the courtroom, for her visit to the land of nod would have found its way onto late-night shows.”