Connect with us

Hi, what are you looking for?

Politics

Supreme Court leak confirms Ruth Bader Ginsburg’s prescient warning about Roe v. Wade

The unprecedented leak of Supreme Court Justice Samuel Alito’s draft opinion in a key case striking down Roe v. Wade (1973) has sparked a heated debate, perhaps drawing new attention to the late Justice Ruth Bader Ginsburg’s opinion on the key abortion precedent.

Although Ginsburg firmly advocated for women’s access to abortion as a constitutional right, she criticized the way in which Roe v. Wade established that right – and her reasoning for this nuanced position may shed light on the current debate.

Chief Justice John Roberts confirmed that Alito’s draft opinion in the case Dobbs v. Jackson Women’s Health Organization was genuine – although the draft dates back to February, and it does not represent the current or final opinion of the Court. In the draft, Alito strikes down Roe v. Wade, which struck down state laws across the country, and allows states to again make their own laws on abortion.

Should the Court indeed strike down Roe in this manner, it might vindicate Ginsburg’s concerns about the pivotal decision. 

SUPREME COURT SET TO OVERTURN ROE V. WADE, LEAKED DRAFT OPINION SHOWS: REPORT

Ginsburg warned against major judicial shifts in a 1992 lecture at New York University, citing Roe as an example.

“Measured motions seem to me right, in the main, for constitutional as well as common law adjudication,” she argued. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

Ginsburg noted that Roe struck down far more than the specific Texas criminal abortion statute at issue in the case.

“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,” she said. “A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.”

Supreme Court Justice Samuel Alito

Ginsburg contrasted Roe v. Wade with a case that never received a full hearing at the Court, Struck v. Secretary of Defense. In that case, the Air Force tried to discharge a female Air Force captain because she became pregnant. Although the captain’s performance as a manager and nurse was exemplary, Air Force regulations required a woman who got pregnant to leave the service or get an abortion. 

The captain refused to get an abortion, for religious reasons, instead giving up the child for adoption. The Air Force sought to discharge her, and she challenged the move in court. After the Supreme Court agreed to hear the case, the Air Force made an exception and allowed her to remain in the service.

DEMOCRATS CONDEMN SUPREME COURT ABORTION DRAFT AS ‘ABOMINATION,’ URGE CONGRESS TO CODIFY ROE V WADE

The captain argued “that the Air Force regime differentiated invidiously by allowing males who became fathers, but not females who became mothers, to remain in service and by allowing women who had undergone abortions, but not women who delivered infants, to continue their military careers,” Ginsburg noted.

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. 

Ginsburg drew two conclusions from the case: first that “if even the military, an institution not known for avant garde policy, had taken to providing facilities for abortion, then was not a decision of Roe’s muscularity unnecessary?” and second that if the Court had considered this alternate case, it might have concluded “that disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination on the basis of sex.”

Ginsburg went on to contrast the Court’s landmark decision in Roe with a slew of decisions from 1971 to 1982 in which the Court struck down “a series of state and federal laws that differentiated explicitly on the basis of sex.”

Rather than creating a new philosophy of law and imposing it on the nation immediately, “the Court, in effect, opened a dialogue with the political branches of government.”

“In essence, the Court instructed Congress and state legislatures: rethink ancient positions on these questions,” Ginsburg noted. “The ball, one might say, was tossed by the Justices back into the legislators’ court, where the political forces of the day could operate.”

Alito’s opinion effectively reverses what Ginsburg described as fashioning a new “regime” on abortion – a move that would be unnecessary had the Court instead proceeded to work with state legislatures and Congress to hammer out compromises on abortion. 

Click to comment

Leave a Reply

Your email address will not be published.

You May Also Like

Energy

A brutal heat wave in South Asia that triggered a chain reaction affecting global food security was made 30 times more likely by climate...

Politics

The discussions are in very preliminary stages and a proposal has not been presented to President Joe Biden for a decision, the sources added....

United States

ATLANTA — Early voting turnout in Georgia’s primary elections surged past previous milestones, signaling an energized electorate in a newly minted political battleground that...

Europe

American coffee giant Starbucks is leaving Russia after 15 years in the country, the company announced in a statement Monday. While Starbucks announced at...

Politics

Within hours, his White House aides insisted that the President’s comments did not constitute any official US policy change, despite the fact that Biden...

United States

WASHINGTON — President Biden’s decision on Monday to try to align with Asian partners to form an economic bloc against China comes at a...

Politics

A judge’s decision Friday to issue a preliminary injunction on attempts by the Biden administration to end the Title 42 public health order may...

Europe

LONDON — Photographs which appear to show U.K. Prime Minister Boris Johnson drinking at a potentially rule-breaking party have been published by ITV News....