Justice Ruth Bader Ginsburg, in rare, bazaar interview, demonstrates disconnect with most all Americans -- explains her assumption that Margaret Sanger eugenics was basis of Roe v. Wade
UPDATE 7/10/09: Justice Ginsburg: I Thought Roe Would Help Eradicate Unwanted Populations
Be sure to read the entire interview; below are just a few excerpts . . .
-- From "The Place of Women on the Court" by Emily Bazelon, New York Times Magazine 7/12/09 edition
Q: Let me ask you about the fight you waged for the courts to understand that pregnancy discrimination is a form of sex discrimination.
JUSTICE GINSBURG: I wrote about it a number of times. I litigated Captain Struck’s case about reproductive choice. [In 1972, Ginsburg represented Capt. Susan Struck, who became pregnant during her service in the Air Force. At the time, the Air Force automatically discharged any woman who became pregnant and told Captain Struck that she should have an abortion if she wanted to keep her job. The government changed the regulation before the Supreme Court could decide the case.] If the court could have seen Susan Struck’s case — this was the U.S. government, a U.S. Air Force post, offering abortions, in 1971, two years before Roe.
Q: And suggesting an abortion as the solution to Struck’s problem.
JUSTICE GINSBURG: Yes. Not only that, but it was available to her on the base.
Q: The case ties together themes of women’s equality and reproductive freedom. The court split those themes apart in Roe v. Wade. Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality?
JUSTICE GINSBURG: Oh, yes. I think it will be.
Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?
JUSTICE GINSBURG: 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.
Q: 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?
JUSTICE 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.
Q: When you say that reproductive rights need to be straightened out, what do you mean?
JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.
Q: Does that mean getting rid of the test the court imposed, in which it allows states to impose restrictions on abortion — like a waiting period — that are not deemed an “undue burden” to a woman’s reproductive freedom?
JUSTICE GINSBURG: I’m 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.
Q: Since we are talking about abortion, I want to ask you about Gonzales v. Carhart, the case in which the court upheld a law banning so-called partial-birth abortion. Justice Kennedy in his opinion for the majority characterized women as regretting the choice to have an abortion, and then talked about how they need to be shielded from knowing the specifics of what they’d done. You wrote, “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution.” I wondered if this was an example of the court not quite making the turn to seeing women as fully autonomous.
JUSTICE GINSBURG: The poor little woman, to regret the choice that she made. Unfortunately there is something of that in Roe. It’s not about the women alone. It’s the women in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him.
Q: In the 1980s, you wrote about how while the sphere for women has widened to include more work, men haven’t taken on as much domestic responsibility. Do you think that things are beginning to change?
JUSTICE GINSBURG: That’s going to take time, changing that kind of culture. But looking at my own family, my daughter Jane teaches at Columbia, she travels all over the world, and she has the most outstanding supportive husband who certainly carries his fair share of the load. Although their division of labor is different than mine and my husband’s, because my daughter is a super cook.
Q: Can courts play a role in changing that culture?
JUSTICE GINSBURG: The Legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do. But it’s not something a court can decree. A court can’t tell the man, You’ve got to do more than carry out the garbage.
