One woman and judge’s view

 

 

 

This coming Sunday’s The New York Times Magazine will publish an interview with Justice Ruth Bader Ginsburg entitled The Place of Women on the Court. [HERE] In part, it offers her exhortation encouraging the confirmation to the Supreme Court of Judge Sonia Sotomayor. In part, it is a revealing insight into the kind of woman, person, and human being that are Ruth Bader Ginsburg.

 

Inevitably, questions about abortion and the law and Constitutional issues dealing with this issue surfaced during the interview. The following exchange between Justice Ginsburg and the interviewer divulges a great deal about the kind of woman, person, and human being that Ruth Bader Ginsburg is:

 

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…

 

I have emphasized two portions of the Justice’s response to different questions about abortion. Her two answers, in one sense, do not seem to be consistent with one another. On the one hand, she viewed Roe as the means of controlling population, “particularly growth in populations that we don’t want to have too many of.” I wonder what are those populations “that we don’t want to have too many of”? On the other hand, she asserts that the government has no role in making decisions about a woman’s “reproductive rights.” But, if she means that the state has no role in stopping a woman from having an abortion for any reason or no reason, then the two statements become more coherent with each other. In any case, she did not retract her views about population control and using government moneys to fund abortion—for that would not take away women’s “reproductive rights.” It seems that from her perspective, “reproductive rights” and population control may not be in conflict with one another. And, if this is indeed the case, we have learned a great deal about what kind of woman, person, and human being Ruth Bader Ginsburg is.

 

RJA sj