An interesting article. This isn’t to change minds but hopefully educate us on legal thought. Justice Ginsburg thought Roe was the wrong case to settle abortion issue The Supreme Court probably wouldn’t have the votes to overturn the right to abortion in Roe v. Wade, as a leaked draft opinion proposes, if Justice Ruth Bader Ginsburg were still on the court. But Ginsburg was not a fan of the reasoning behind the 1973 ruling. Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted. Ginsburg actually didn’t think Roe was the best case for establishing abortion rights. She would have preferred a case she worked on as a lawyer for the American Civil Liberties Union in the early 1970s. In that case, Ginsburg represented an Air Force captain who became pregnant while serving as a nurse in Vietnam. In a twist, Ginsburg championed the woman’s right not to have an abortion; an Air Force rule at the time dictated that pregnant women had to terminate their pregnancies or be discharged. Ginsburg challenged the rule on behalf of the woman, Susan Struck, in a case called Struck v. Secretary of Defense and won a stay preventing Struck’s discharge while the courts reviewed the case. In December 1972, two years after Struck gave birth to a baby and shortly after the Supreme Court agreed to hear the suit, the military changed the policy and let Struck remain on active duty. The court agreed to drop the case as moot. The following month, it issued its Roe v. Wade ruling. “The idea was: ‘Government, stay out of this,’ ” Ginsburg said of the Air Force case at a University of Chicago Law School conversation on the 40th anniversary of Roe in 2013. “I wish that would have been the first case. The court would have better understood this is a question of a woman’s choice.” Roe v. Wade, which challenged a Texas law that banned abortions except to save the mother’s life, invalidated all state laws that prohibited abortion and established a constitutional right to the procedure. At the law school event, Ginsburg argued that the court should have deemed the Texas law unconstitutional without such a sweeping ruling. That would have led to a gradual relaxation of abortion bans on a state-by-state basis, she said, and advanced the democratic process. “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said, adding that the decision gave “opponents a target to aim at relentlessly.” Geoffrey R. Stone, a professor and former dean of the University of Chicago Law School who conducted the 2013 discussion with Ginsburg, said in an email this week that a main source of her concern about Roe was that it went too far, too fast. “She felt that a more incremental approach would be less likely to trigger what became the extreme political opposition to Roe ,” he said. Get the Post Most Newsletter The most popular and interesting stories of the day to keep you in the know. In your inbox, every day. Ginsburg made a similar argument in 1992, a few months before President Bill Clinton nominated her to the Supreme Court. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade ,” Ginsburg said at a New York University Law School lecture. “A less-encompassing Roe , one that merely struck down the extreme Texas law and went no further on that day … might have served to reduce rather than to fuel controversy,” she added. From 1971 to 1982, she said, the high court invalidated state and federal laws for violating due process or equal protection principles. “The Supreme Court wrote modestly, it put forward no grand philosophy; but by requiring legislative reexamination of once-customary sex-based classifications, the court helped to ensure that laws and regulations” would reflect a changing world, she said, according to her prepared remarks. She added, “ Roe v. Wade , in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe v. Wade was issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures ‘toward liberalization of abortion statutes.’ ” Ironically, conservative columnist George F. Will has made a similar argument. In a 2003 column, he wrote that the Supreme Court had tried to end the debate about abortion with its decision in Roe . “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy,” he wrote. “Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” Mary Hartnett, a Georgetown University law professor who is co-authoring an authorized biography of Ginsburg, told the New York Times in 2020 that the justice thought the Supreme Court made a mistake in Roe by relying on the right to privacy. Ginsburg “believed it would have been better to approach it under the Equal Protection Clause,” said Hartnett, who spent 17 years interviewing Ginsburg with her co-author, Georgetown Law professor emerita Wendy Webster Williams. But Stone, the University of Chicago Law School professor, said the Supreme Court didn’t have the votes for that position in 1973. Stone was a clerk for Justice William J. Brennan at the time. “She was a strong advocate for the position that the Equal Protection Clause should prohibit laws that discriminate against women,” Stone said. “Unfortunately, at the time Roe was decided, we could not get five votes for that position. Thus, there was no way that the Equal Protection Clause could be used at that time to resolve Roe .” He added that the justices on the court in 1973 — who were all men — “were skeptical of the argument that a law that treated men and women differently because they were biologically different, as in the pregnancy issue, would violate equal protection.” Frederic J. Frommer, a writer and sports historian, is the author of several books, including “You Gotta Have Heart: Washington Baseball from Walter Johnson to the 2019 World Series Champion Nationals." Democracy Dies in Darkness © 1996-2022 The Washington Post
I'm willing to bet that in this case there is no issue. The baby is dead so it isn't an abortion. This is called a medical procedure.
Why didn’t you read the article? You prove your ignorance so I’ll enlighten you. She was supporting a woman Air Force captain who was pregnant and fighting the AF rule that would force her to have an abortion. Try again
Another very interesting article that’s maybe counter-intuitive but I agree with. No matter what your opinion on abortion is Roe v Wade was too broad and limited the very important characteristic that power was to be centered on states not a national umbrella except for those enumerated in the constitution. OPINION Overturning Roe would make America more democratic The partisan furies unleashed by the Supreme Court’s leaked draft opinion that would overturn Roe v. Wade are, for the most part, higher-intensity retreads of decades of cultural warfare over abortion. The pro-choice side contends, as it always has, that the conservative justices are influenced by antique religious convictions and are hostile to women’s health and equality; the pro-life side contends, as it always has, that abortion extinguishes a human life and that the right to it is found nowhere in the Constitution. But one rhetorical weapon in the liberal arsenal is of more recent vintage. As The Post reports, Democrats are now making a concerted effort to cast the draft opinion, written by Justice Samuel A. Alito Jr., as “at odds with democracy,” and the media is following suit. A Los Angeles Times column called the leaked opinion an “emphatic, and damaging, expression of minority rule”; a New York Times podcast warned of the “frighteningly autocratic” implications of the decision; and a New Yorker essay cautioned that “the danger of permanent minority rule is looming ever larger.” This point of view is … puzzling, at least if we interpret “democracy” to mean something like “self-government through elections.” The court’s contemplated ruling in Dobbs v. Jackson Women’s Health, which concerned a Mississippi abortion regulation, would allow popular majorities to decide the scope of abortion rights for the first time in a half-century. Life-tenured, unelected federal judges would lose their authority over a contested part of American life, and the menu of policy options for voters to choose from would expand dramatically. The surge of democratic inputs in abortion policy — in direct referendums, as well as elections for statehouses, judgeships, governorships and Congress — would be so sudden and profound that the results are impossible to predict. Why would liberals characterize such a clear democracy-expanding devolution of power as, in effect, a minoritarian coup? The most common explanation is that the Republican Party’s “structural advantage” in the Senate and electoral college (derived from its ability to win majorities distributed across a greater number of less-populous states) has contributed to the ideological composition of the Supreme Court. There is no doubt that the GOP played procedural hardball to achieve the conservative court majority. But if the court does in fact have a “structural” bias in favor of the GOP, that’s all the more reason for policy to be decided at the state level as a matter of democratic fairness. State legislative districts have strictly equal population sizes (unlike the states represented in the U.S. Senate), and there’s no electoral college in gubernatorial races. If Roe falls, alleged democratic shortcomings in the Supreme Court confirmation process are irrelevant; authority over abortion policy would lie primarily with state officials, who are more responsive to political majorities than justices appointed by presidents of either party. Get the Post Most Newsletter The most popular and interesting stories of the day to keep you in the know. In your inbox, every day. Yes, polls show that a majority of Americans want Roe to stay. But dig deeper into what abortion regulations the public supports, and both sides can make a plausible claim to majority backing. As the Manhattan Institute’s Charles Lehman points out, a recent poll found that nearly two-thirds of Americans think abortion should be banned after 15 weeks. In other words, the outline of the Mississippi legislation at issue in the Dobbs case appears to have majority support not only in Mississippi’s legislature but also across American adults. How exactly would the justices have vindicated democracy by striking it down? President Biden on Tuesday was more candid in his defense of Roe . “I’m not prepared to leave [abortion policy] to the whims of the public at the moment in local areas,” he said. Bingo: The real problem for critics of Alito’s draft opinion is that it prescribes too much democracy, not too little. Biden wants to make it easier for Americans to vote but also to limit their ability to influence abortion policy in elections. Reintroducing abortion into the democratic process would heighten the stakes of state-level competitions for office. This won’t necessarily be a gentle process: Periods of growing popular sovereignty (such as the Jacksonian era in the United States) are often accompanied by social upheaval. Institutions are transformed as new interests demand representation. The promise of a post- Roe democratization of abortion policy is that the representative institutions of each state can identify policies consistent with the views of its residents. The peril is that the nationalized partisan dynamics could instead push red and blue states into extreme abortion policy blocs that are perpetually at one another’s throats. This week has shown that America’s erosion of political norms is unlikely to stop any time soon. But as George Orwell observed, “to think clearly is a necessary first step toward political regeneration.” Clear thinking tells us that democracy is not a utopian end-state; it’s a process for temporarily settling differences of opinion. The court is poised to make the United States more democratic when it comes to abortion policy. By distorting the meaning of democracy — especially on the narrow issue of abortion — progressives risk draining the democratic ideal of its prestige and moral authority. That’s one way to grease the skids for “minority rule.” Jason Willick writes a regular Washington Post column on legal issues, political ideas and foreign affairs. Before coming to The Post in 2022, he wrote for the Wall Street Journal and the American Interest. Democracy Dies in Darkness © 1996-2022 The Washington Post
What utter nonsense. By that same logic, repealing the Bill of Rights and the Thirteenth and Fourteenth Amendments and leaving it to the states to decide whether and which people should have freedom of speech, freedom of assembly, the right to vote, etc. "would make America more democratic."
Logic and you should not be mentioned in the same sentence. The Bill of Rights, the 13th and 14th amendments, the constitution and all others rights will be in jeopardy as long as there is even just one DEMOCRAT in political power.
If the people vote in a way, what is not democratic about that? No one said Democratic process are 100% freedom. 100% freedom would require zero government
