Jamie Dunkerley writes an analysis of the late Ruth Bader Ginburg's opinion on landmark US case Roe-v-Wade.
Amongst the many tributes to Justice Ruth Bader Ginsburg in the days after her passing, much has been made of her advocacy work fighting gender discrimination and her captaining of the liberal wing of the United States Supreme Court. Most of the homages, however, fail to mention perhaps one of her greatest and most insightful bodies of work: her repeated critique of Roe v Wade.
It was held in Roe v Wade that women have a constitutional right to personal and decisional privacy (right to be free from government interference in decisions) under the Due Process Clause of the Fourteenth Amendment and that this right encompasses the right to abortion: women have the right to decide whether to have an abortion, free from excessive government intrusion or restriction.
The decision is often criticised by those who are opposed to abortion, or by those who view it as a form of judicial activism, such as Ronald Dworkin. Ginsburg’s view on Roe is far more nuanced, however. Given her track-record, it is of no surprise that she was in favour of women having the right to abortion, but many are unaware that Ginsburg was a strong critic of the rationale behind the decision for many years.
Her critique is two-fold. Firstly, Ginsburg argued that it would have been more ‘acceptable’ – and beneficial to gender rights – if the decision in Roe was grounded in constitutional equality rather than decisional autonomy. In an article written in 1985 for the North Carolina Law Review she argued that the ‘Court’s Roe position is weakened… by the opinion’s concentration on a medically approved autonomy idea,’ and offered a warning that debates ‘on the abortion issue will continue through the 1980s’. Ginsburg thought that it would have been easier for the American people to understand the decision if it was based on gender-equality principles, rather than the difficult to define notion of privacy.
The issue is that there is no right to decisional privacy (or autonomy) enshrined within the United States Constitution. Through a slew of cases, the Supreme Court has judicially manufactured the concept of a ‘right to privacy’. There is no mention of ‘privacy’ within the Constitution, and yet the Supreme Court has utilised it as a justification to allow for the right to an abortion. Ginsburg had previously argued that the right to an abortion should be granted through the principle of equality, or the constitutional right to equal protection under the law as enshrined in the Equal Protection Clause of the 14th Amendment. Instead, Roe v Wade created the right to an abortion out of a right (privacy) that was penumbral of previous decisions and was itself created through peripheral interpretations of the Constitution. According to Ginsburg, Roe’s constitutional platform, therefore, is very precarious.
Secondly, she believed that the Court in Roe went too far. Rather than simply striking down the specific Texas statute - itself an extreme piece of legislation which banned all abortion except to save the mother’s life - the Court made the restriction of illegal, unless balanced against government interest in protecting women’s health, ‘in one fell swoop’. Ginsburg criticised the decision in 1992 for its wide-reaching and all-encompassing effect. She believed that the Court should have struck down the particular Texas law in question ‘and put down its pen’. Instead, the Court took the utmost action available and deemed illegal all anti-abortion state laws across the United States.
Speaking at the ‘Roe v Wade at 40’ event in 2013, Ginsburg solemnly expressed that the consequences of this decision were that ‘momentum on the side of change’ was halted and that the case created a target for anti-abortionists. She would have preferred that the progress of abortion rights was more gradual and developed through the legislature.
With the passing of Ginsburg, the rationale underpinning Roe has become even more significant. President Trump has nominated Amy Coney Barrett for the Supreme Court, praising her ‘unyielding loyalty to the Constitution’. Barrett is a conservative and an originalist judge, in the ilk of Trump’s previous nominees Neil Gorsuch and Brett Kavanaugh who believe the Constitution should be interpreted as it was originally intended when first enacted. If Barrett is approved by the Senate before the November election, then the court would have a conservative majority with six justices. This does not bode well for the judicially-inferred constitutional right of privacy and thus the right to an abortion.
The combination of Roe’s weak constitutional grounding and a conservative-majority in the Court leaves women’s abortion rights on a precipice. Because the right to an abortion was not founded on the constitutional right of equality, it could prove relatively easy for a conservative-majority Court to overturn Roe by simply reverting to an originalist reading of the Constitution – if an appropriate abortion-related case is put before it.
Ginsburg stood as a bulwark against attacks on abortion and women’s rights for most of her professional life. After her death, those who possess the same principles as Ginsburg should heed her views on Roe v Wade in order prepare for the threats to women’s rights that may rear their head in the coming years or even months.
Jamie Dunkerley has just completed his Law degree at the University of Bristol and is hoping to undertake a Masters in Public International Law. He particularly enjoys writing about international politics and human rights around the world.
He tweets at @JamieDunkerley.