Geoffrey Stone: Justice Ginsburg, Roe v. Wade and Same-Sex Marriage
I had the honor of having a public "conversation" yesterday with Justice Ruth Bader Ginsburg before a large audience at the University of Chicago Law School. The topic of the event was the 40th Anniversary of Roe v. Wade. Justice Ginsburg offered many interesting observations about the women's rights movement, in which she herself was a pivotal actor. But I suspect some of her reflections on Roe v. Wade must have surprised the audience.
Because Justice Ginsburg has always been a strong proponent of a woman's right to choose, members of the audience undoubtedly expected her to celebrate Roe v. Wade as one of the great achievements in the history of the Supreme Court. Instead, she was quite critical of the decision.
Justice Ginsburg's critique of Roe is especially interesting at this moment because it has implications for the same-sex marriage cases currently pending before the Court. Of course, Justice Ginsburg did not herself draw any such parallel, and it would have been inappropriate for her to do so. But the connection could not have been lost on the audience.
As it happens, I disagree strongly with Justice Ginsburg's take on Roe. Perhaps the most surprising facet of Justice Ginsburg's critique of Roe is her claim that the Court in Roe went "too far, too fast." Until the 1960s, every state made abortion a crime unless it was necessary to save the life of the woman. In the late 1960s and early 1970s, however, in large part because of the women's movement, several states began to ease their restrictions on abortion, and four states went so far as to legalize abortion in the first twenty-four weeks of pregnancy.