I hate to be critical of Supreme Court justices, even when I think they deserve it. After all, one day I hope to argue before them; why poison the well?
But the mind positively reels at this interview with Justice Ginsberg:
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.
This is absolutely astonishing, on a couple of different levels. First, as Ace correctly points out, Justice Ginsberg’s one-time perception of Roe actually turns the holding on its head. Agree or disagree with Roe, the decision was expressly about individual liberty trumping the interests of the government. Justice Blackmun’s majority opinion discovered a right to privacy, and thus reproductive self-determination, hiding in the bushes of the Fourteenth Amendment’s Due Process Clause. And yet Ginsberg — though she allows that her perceptions later changed — seems to have been under the impression, for a period of around seven years during which time she was a tenure-track professor at Columbia University Law School, that Roe was actually about advancing some collective interest. How does such an intelligent, accomplished attorney so egregiously misread or misunderstand an opinion?
Second, what does it say about Ruth Bader Ginsberg the person that (again, for a period of about seven years) she, as a supporter of Roe, evidently believed that the collective interest in controlling unwanted populations — basically, eugenics — was sufficient to prohibit states from outlawing abortion? Again, agree or disagree with Roe, the idea that there’s some individual right to privacy which in some contexts trumps legislative authority is at least morally defensible. On the other hand, though, the idea that there’s any collective interest in controlling unwanted populations is downright reprehensible. Oliver Wendall Holmes, when he wrote that “three generations of imbeciles are enough,” was handicapped by the sensibilities and intellectual fads of his day. Buck v. Bell, 274 U.S. 200, 207 (1927). What was Ruth Bader Ginsberg’s excuse for subscribing to that repulsive philosophy some 50 years later?
Is there a more charitable reading of Justice Ginsberg’s remarks? Help me out, here.
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