Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

A Classist Argument?

By Jack M. Balkin

Over the weekend, the New York Times ran an interview that Emily Bazelon conducted with Justice Ruth Bader Ginsburg, see here. Justice Ginsburg was extremely forthcoming during the interview, but her responses to a set of questions about Roe v. Wade and abortion really struck me as odd and even offensive. I am not an individual rights scholar, so I will only briefly discuss her comments after the jump. First the transcript:

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don?t know why this hasn?t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae ? in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don?t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn?t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

I like Justice Ginsburg personally and she probably knows a lot more about the abortion debate from the 1960s and 1970s than I do, but I am frankly surprised that she would make such a sweeping and inartful statement. A fair reading of her comments is not that she is endorsing the idea of population control, as some in the blogosphere have argued, but that the motivation of groups advocating for abortion rights was classist and even discriminatory at the time. Because the question was about Medicaid funding for abortion, I can only assume that her statement about "growth in populations that we don't want to many of" had to refer to folks who are poor or those with disabilities (i.e., those populations covered by Medicaid). Fairly or unfairly, my first thought after reading that interview was Justice Holmes' now-infamous statement in Buck v. Bell (which upheld forced sterilization) that "[t]hree generations of imbeciles are enough." Perhaps that is because I have a disability and just finished an article on Justice Pierce Butler that attempted to discern his motivations for dissenting without comment in Buck. Again, I do not write in the area of individual rights, but am I missing something in interpreting Justice Ginsburg's statement as saying something along the lines of "no abortions paid by Medicaid=more undesirable folks who are poor or who have disabilities because of the unavailability of abortion for those populations"? Very odd indeed.

Full post as published by Balkinization on July 13, 2009 (boomark / email).