Although she died a stalwart progressive icon, during her 1993 United States Supreme Court confirmation hearings, many liberals were initially skeptical of Ruth Bader Ginsburg’s commitment to upholding Roe. The cause for concern originated in comments that then-Circuit Judge Ginsburg made on April 6, 1984, during the William T. Joyner Lecture on Constitutional Law at University of North Carolina School of Law. Without a doubt, Justice Ginsburg strongly supported the right to abortion, but even after she was confirmed to the high court, she repeatedly provided critical commentary about the decision in Roe and the impact it had on the abortion debate in the United States.
In her recurring critique of Roe, Justice Ginsburg made two related assertions. First, the Court’s decision was based on a flawed legal rationale. Rather than grounding the right to choose an abortion on equality principles as she believed to be more appropriate, the Court based its decision in a fundamental right to privacy located in the Due Process Clause of the Fourteenth Amendment. Justice Ginsburg further found fault with the way in which Roe’s pronouncements on abortion access privileged the physician’s medical expertise over the pregnant person’s decision-making capacity standing alone. Second, Roe invalidated all state laws restricting abortion access prior to the first trimester. Justice Ginsburg would have struck only the extremely restrictive Texas law in front of the Court at that time.
Justice Ginsburg’s critique of Roe was rooted in her studied observation that the Court’s ruling had preempted legislative resolutions to the question about reproductive rights and abortion access. She frequently commented that in 1973 (the year that Roe was decided), the public debate about abortion was still in progress and developing—evidenced by the fact that some states had already begun to legislate less restrictive approaches to abortion access. Justice Ginsburg lamented that the Supreme Court’s decision in Roe abruptly declared a legal conclusion to a still very heated and ongoing social debate. In its sweeping decision, not only had the Court installed a flawed legal framework for the abortion rights question; in doing so, it had also squelched the development of a broader cultural and social consensus on the divisive topic.
In the aftermath of Roe, the anti-abortion movement galvanized and turned its attention away from piecemeal lobbying efforts in state legislatures to a national litigation strategy with sights trained at the Supreme Court. Post-Roe, Congress defunded access to abortion through publicly-funded health care, and subsequent abortion rights cases before the Court have gutted Roe, substantially undermining the right to access abortion. It is undeniable that post-Roe restrictions have had the greatest impact on the poor, in particular on rural residents and people of color. In the almost fifty years since Roe, abortion access has become a more—not less—controversial issue in the U.S. legal and political landscape.