by Margaret Batten, Jane Fund Board Member and Counseling & Referral Hotline Supervisor with Planned Parenthood
In 1992, as a young government attorney, I had the great good fortune to argue a case before a three-judge panel of the DC Circuit Court of Appeals that included then Judge Ruth Bader Ginsburg. Almost 30 years later, I remember few details about the case, not even the names of the two other male judges, but I remember Judge Ginsburg. I was told by my colleagues at the US Attorneys Office that Judge Ginsburg would be well-prepared, well-versed in the details of the case, and she was; that she would be unfailingly respectful, and she was; and then of course there was her signature white lace collar. Shortly after that our paths diverged. I moved away from DC and the law to parent full-time and she… well, the rest, as they say, is history.
When I returned to work, it was not to practice law, but to follow a longstanding passion to promote reproductive freedom. I think now is a particularly critical moment, as we approach what would have been Justice Ginsburg’s 88th birthday, to consider her thoughts about abortion and the legacy of Roe v. Wade. When RBG was appointed to the high court, there were feminists who opposed her nomination because they worried that she would not be an adequate champion of abortion rights. It was true that Judge Ginsburg criticized the landmark ruling in Roe—not because she didn’t believe in abortion rights, but rather because she was a judicial incrementalist.
RBG thought that the Supreme Court had overplayed its hand in Roe, that the case could have been narrowly decided to strike down the Texas law prohibiting abortion without creating a federal constitutional right to choose that simultaneously struck down every other state law criminalizing abortion as well. In so doing, Justice Ginsburg believed that the Supreme Court pushed the country as a whole too far, too fast, and planted the seeds for an extreme, well-organized, and unrelenting anti-choice movement. In 1973, when Roe was decided, RBG felt that the country was already moving in a more liberal pro-choice direction, that popular opinion would continue to shift leftward, and that state legislatures should have been left freer to protect reproductive freedom on their own timelines. She wrote in 1992: “Roe… halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”
Justice Ginsburg also believed—correctly in my opinion—that abortion was not about privacy and the relationship between a woman and her doctor, but about equality; that absent the ability to control their reproductive destinies, women could not achieve social, economic, and political parity with men. As she put it: “Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” A narrower decision in Roe, one rooted in the Equal Protection Clause, Ginsburg posited, would have laid a firmer, indisputable foundation for the right to choose.
Not only did Justice Ginsburg prove herself a fierce and constant defender of abortion rights, she was prescient in her critique of Roe. For the past 48 years, the anti-abortion movement, seemingly taking a page out of RBG’s incrementalist book, chipped away at Roe by encumbering it with burden after burden: successfully imposing mandatory waiting periods and counseling, restricting public funding, requiring parental involvement, and limiting who could perform abortions and where they could perform them. These laws have had the devastating effect of making abortion inaccessible for many, while seemingly not running afoul of the core holding in Roe.
In this moment, however, with a conservative majority firmly entrenched on the Supreme Court, it appears that the so-called pro-life movement is giving up the incrementalist approach and looking simply to overturn Roe altogether. Prior to 2019, most mainstream anti-abortion leaders cautioned that “heartbeat bills”—legislation that attempted to ban abortion altogether as soon as a “heartbeat” can be detected, sometimes as early as 6 weeks—were overreaching and doomed to backfire. But last month, South Carolina became the 12th state to enact such a sweeping abortion ban and even some otherwise moderate republicans signed on—and just a few days ago, Arkansas passed a total abortion ban, with the stated intent of overturning Roe.
If RBG was right in her assessment of Roe, is the Supreme Court, at the urging of anti-abortion absolutists, in danger of repeating the same mistake in reverse, of pushing a majority pro-choice country too far backwards? Will reproductive rights advocates be able to meet the moment with a comparable, unrelenting backlash? As blue states like Massachusetts already press to shore up or even expand reproductive freedom, and abortion funds nationwide seek to increase and consolidate coverage, what will remain to be done to help those who are left out? Even as we celebrate her legacy and wish RBG a happy birthday, these questions remain firmly in mind.