Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit

Meredith Heagney
Law School Office of Communications
May 15, 2013

Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision.

Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.

Ginsburg and Professor Geoffrey Stone, a longtime scholar of reproductive rights and constitutional law, spoke for 90 minutes before a capacity crowd in the Law School auditorium on May 11 on “Roe v. Wade at 40.”

“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

In his introduction for Ginsburg, Schill spoke of her ties to the Law School: Her late husband, Martin, was a Visiting Professor, her son, James, attended the law school before starting a classical music record label, and, Professor Aziz Huq was her clerk in 2003 and 2004. She’s also a longtime friend of Stone.

Ginsburg and Stone each had important perspectives to share on Roe and other gender-related cases of that era. The same year as Roe, Ginsburg argued her first case before the Supreme Court, Frontiero v. Richardson, wherein she advocated that strict scrutiny be applied to sex classifications just as it was to racial classifications. She could persuade only four justices to her side, but in the wake of Frontiero, the Court established a standard of intermediate scrutiny for constitutional issues of gender.

Two years before that, she wrote the brief in the 1971 Supreme Court case Reed v. Reed, which overturned an Idaho law granting men preference as estate administrators and extended the Constitution’s equal protection guarantee to women for the first time.

Stone, for his part, was clerking for Supreme Court Justice William Brennan during Frontiero and Roe, and he recalled watching Ginsburg’s oral argument in the former case, which he called “mesmerizing.”

In her back-and-forth with Stone, Ginsburg offered many fascinating observations. She talked about what life was like for women in the “not so good old days,” when judges believed that laws restricting women from certain work, such as bartending or lawyering, were there to protect the fairer sex. Her goal as a litigator was to show judges that these rules marginalized women, rather than protect them from harm. She said that only “well-heeled” girls and women who found themselves with an unwanted pregnancy had the option to get an abortion, by traveling abroad, while poorer women had no such option.

“For most young women, the only way to deal with it was to marry him,” Ginsburg said.

Ginsburg talked about the case she wished would’ve been the first reproductive freedom case before the U.S. Supreme Court, Struck v. Secretary of Defense. In that case, Ginsburg represented Capt. Susan Struck, who was serving in the Air Force in Vietnam when she became pregnant. The Air Force gave her two options: terminate or leave the Air Force. Struck wanted to keep the baby and her job, and Ginsburg took her case. The Supreme Court agreed to hear the case, but the Air Force relented and allowed Struck to keep her job, rendering the issue moot. 

“I wish that would’ve been the first case. I think the Court would’ve better understood that this is about women’s choice,” Ginsburg said.

In response to a student question about what would happen if Roe were overturned now, Ginsburg said the effect would largely be restricted to poor women in anti-choice states. Many states would never outlaw abortion, and wealthier women will always be able to travel to those states, she pointed out.

“If you have the sophistication and the money, you’re going to have someplace in the United States where your choice can be exercised in a safe manner,” she said. “It would mean poor women have no choice. That doesn’t make sense as a policy.”

Brittany Gorin, ’15, asked Ginsburg what advice she has for young women taking up the mantle of the women’s rights movement. Ginsburg expressed disappointment that many young women shy away from the word “feminist” as if it is a foul word, and the fact that young women aren’t pushing for the passage of the Equal Rights Amendment. She reminded the young women in the audience that they were lucky to have many opportunities that many women do not have. Women must work to ensure that all women have better opportunities, she said.

“Now all the doors are open, but we haven’t come all the way,” Ginsburg said.

Afterward, Gorin said it was a thrill to get to ask Ginsburg a question, and that the justice’s message resonated with her.

“I feel very fortunate to be privileged enough to be here, at the University of Chicago, where I get to hear a justice,” Gorin said. “We have a requirement upon us to help other people who aren’t as privileged as we are.” 

Fellow 1L Sara Haley, ’15, said she planned to use a practical tip shared by Ginsburg about writing briefs. During the talk, Stone acknowledged that he drafted Brennan’s plurality opinion in Frontiero by relying heavily on Ginsburg’s brief.

“That was always my aim,” Ginsburg revealed. “When I wrote briefs I wanted to give the court something it could convert into an opinion.”

Keiko Rose, ’15, said she enjoyed listening as Ginsburg talked through complex legal ideas. “You see immediately why she’s as successful as she is, the way her brain works,” Rose said. “People like us – women law students – have so many opportunities because of people like Justice Ginsburg,” she said.

Mishan Wroe, ’13, even received a compliment from Ginsburg, which she said would be a lifelong memory. After her speech, Ginsburg visited with students in the Green Lounge, where Huq, her former clerk, told her about Wroe’s work co-founding the Domestic Violence Project. The initiative offers pro bono legal aid to women in abusive relationships.

“She said it was great that I did that,” Wroe said, leaving the building with a big smile and her phone in hand, about to call family to relay the story. “It’s pretty surreal to talk to her. She’s such a hero of mine.”

Geoffrey R. Stone
Aziz Huq
Michael H. Schill


Roe v. Wade

Abortion-advocates (Ginsburg, our politicians, SCOTUS, our current POTUS) continually distance themselves from the actual act of abortion by arguing that they do not support abortion, they only support a women's legal right to choose abortion. Does that really change anything at all? Is there a moral distinction between supporting abortion and supporting a woman's right to abort?

The law leaves our citizens the legal freedom to make horrible choices, but the law must do everything that it can to prohibit criminal choices. Watch a partial birth abortion and then let's talk about "choice".

To you gifted students, I challenge you to move our country away from this, the most horrific injustice in the history of the world.


Re: "Roe v. Wade", by Jeff Buckner

Jeff Buckner:


"Abortion-advocates (Ginsburg, our politicians, SCOTUS, our current POTUS) continually distance themselves from the actual act of abortion by arguing that they do not support abortion, they only support a women's legal right to choose abortion. Does that really change anything at all? Is there a moral distinction between supporting abortion and supporting a woman's right to abort?"

I regard the argument from being not in favor of abortion, the procedure itself, while being nevertheless pro-choice, to be a position that I respect, but regard as the weak argument.
The strong argument is derived from the recognition of the *necessity* of abortion as a vital medical procedure, while of course being pro-choice as well.   Within the strong position as described here, one upholds not only the peripheral but necessary Fourth Amendment right to privacy, but also the Fourteenth Amendment's Equal Protection under the Law doctrine.   Within the strong argument, one also is defending integral key human rights that are ignored by members of the so-called "pro life" crusade.   Those basic fundamental rights--without which the "right to life" means essentially nothing--are: the right to body integrity and body autonomy, the right to self-defense and the right to plan one's life long range.    These are rights that men have long taken for granted for themselves.  But to deny these rights to women while enjoying those rights yourself makes you not only an insufferable misogynist, but someone who proposes that our government repeatedly and perpetually violate its own Equal Protection Clause.

Here is an expansion of the three rights named, as they apply in this context:

the right to body integrity and body autonomy -- which includes the right to require ongoing consent for the continued use of one's own body as well as the right to sexual liberty.

the right to self-defense -- a fetus is *always* necessarily a threat to the woman's very life.  And only she has the right to decide--and always--how much risk of harm she must endure.    Fertilization (conception), embryonic, then subsequent fetal development are all things that happen automatically in the woman's body.   It does not matter how the conceptus came to be.   A decision to consent to sexual intercourse is not consent to either become, or continue to be pregnant.   And as long as the fetus is in her body it can have no clear rights at all, since to declare such would necessarily negate the previously-existent rights of a developed person, the woman.

The right to plan one's life long range -- It can be a beautiful thing when a woman becomes a mother, when the new person she's brought into the world is wanted, loved, cherished, bonded with, has its toes sucked, is breastfed enthusiastically...  In other words, has all the things we all need, or needed, at that stage of life to grow into happy, healthy, beautiful beings--as humans are supposed to.
None of these conditions apply at all when a pregnancy and birth is forced.   When a child is not genuinely wanted, it will pick up on that, even if such is not explicitly said to him/her.    And nothing will kill a child's spirit more than to be actually unwanted, to miss even some of the body contact and bonding with the mother that is so essential to its early development.   This is how psychopaths and serial killers are made.
And for the woman to not be able to plan her own fetility long-range is effectively--and literally--a death sentence for her.


"The law leaves our citizens the legal freedom to make horrible choices, but the law must do everything that it can to prohibit criminal choices. Watch a partial birth abortion and then let's talk about 'choice'."

Your assumption here is dubious at best, since your apparent conclusion is that the rights of body integrity and body autonomy, self-defense and long-range life planning are all "crimes" when their full exercise is available to women.    You deny actual human rights to life, for the sake of your own irrational fetishization of the fetus and embryo.


"To you gifted students, I challenge you to move our country away from this, the most horrific injustice in the history of the world."

Ah, no.   We will NOT move away from it.    The only horrific injustice here is the miscarriage that is continually occurring in that bigoted thing in your head that should be a mind.


Merlin David Liverman

Ginsburg's visit

Per Gorin in the article: “We have a requirement upon us to help other people who aren’t as privileged as we are.” 

Wouldn't you think that that sentiment "to help" would also serve as a logical basis for "helping" the innocents to at least have a crack at life itself?

What in the world could ever be so wrong (or trump) recognizing that a baby should not be killed before it has a chance to LIVE?

If Ginsburg's concern is that poor women might not have a choice, how does she reconcile the even poorer unborn children that don't even get a chance to breathe?

WTF - Wake Up to the reality that is abortion and help this nation (you, our most gifted law students) by leading us away from the greatest injustice in the history of the world.

It's funny, because Roe v.

It's funny, because Roe v. Wade was decided based upon the 4th amendment protecting a person's right to privacy. Whatever adhering to a living constitution means to her I think that the clauses in the constition that embody principles and values should evolve with time and should be determined by the time period, but for something like privacy or freedom of speech it's not a matter of how each era dictates whether something is "cruel or unusual." It's a matter whether "insert whatever" violate someones 4th amendment right to privacy in their person. It just is for these type of clauses: a yes or no question. Does "insert whatever here" violate a person's right to freedom of speech?

I think that there might be a role for a justice to phase in a radical change if he or she thinks it's in the constitution, because it would cause societal fragmentation, but she's hell bent on upholding all things liberal, because she views that as being what represents progress. In a YouTube video she said that she thinks that the purpose of the clause in the preamble "in order to form a more perfect union" is meant to talk about what is embodied in this docuement. I agree. If passing "whatever amendment" would make us "a more perfect union" then they ought to do that. That phrase was mainly to talk about what they were founding, and then passing it off to future generations to do the same thing.

I would also argue that a women does not have a right to abortion under the 4th amendment's clause protecting the privacy and a person, and on a moral issue I think that legalized abrtion is not a sign of progress. Privacy and freedom are two different things. We can regulate privacy. We simply need a search warrant to see if the person is whatever.