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Unlikely critic of Roe v. Wade: Ruth Bader Ginsburg

Guy Page

by Guy Page

October 26, 2020 – By this evening, Amy Conant Barrett will almost certainly be the ninth justice of the U.S. Supreme Court. Critics of her opposition to Roe V. Wade, the 1973 ruling legalizing abortion, might be surprised that another longtime Roe critic was none other than the justice she will replace: Ruth Bader Ginsburg.

That’s right. Before ascending to the high court in 1993, RBG criticized Roe. In scholarly writings and public lectures. Not just once, but twice.

Ginsburge wrote in the Jan. 1 1985 North Carolina Law Review that the court “ventured too far….” when it “called into question the criminal abortion statutes of every state. The “heavy-handed judicial intervention was difficult to justify…and appears to have provoked, not resolved, conflict.”

Sounds like she had more in common with friend and fellow Justice Antonin Scalia than just a love of opera.

Ginsburg even questioned Roe’s ‘privacy’ principle, which was discovered like buried treasure in 1973 by Justice Harry Blackmun. She wrote: “personal privacy, somehow sheltered by due process” should have been set aside in favor of “a constitutionally-based sex-equality perspective.”

RBG skeptical about the hallowed “right to privacy”? Say it ain’t so! These days talk like that would get any potential nominee blacklisted from the American Bar Association’s short list of Democrat-approved candidates.

In a 1992 lecture at NYU’s law school, she predictably supported a recent SCOTUS rejection of a Texas anti-abortion law, but then added this bit of heresy: Roe watered the seeds of anti-abortion backlash by taking away states’ rights. She said: “Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?”

In hindsight, RBG was both judge AND prophet. 24 years later, anti-abortion voters helped elect Trump, who then kept his election promise to select pro-life Supreme Court judges – three of them (so far), including RBG replacement Barrett.

Let’s get one thing straight: Supreme Court Associate Justice Ruth Bader Ginsburg was no softie on abortion rights. She was a relentless, powerful, lifelong advocate for legal abortion. 21 years before her 1993 appointment to the high court, RBG co-founded the Women’s Rights Project for the American Civil Liberties Union (ACLU), which played a key role in making abortion the law of the land.

If anything, Ginsburg’s two public musings about Roe – the latter just a year before her appointment – seem from another time. Such freedom could hardly be acceptable now, with positions so fiercely scrutinized and ideological loyalty rigidly demanded.

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