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

Ruth Bader Ginsburg

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.”