05/04/2022
Thank you Dana Rubin, from Speaking While Female (LinkedIn)
Just five months just before she joined the Supreme Court in 1993, Ruth Bader Ginsburg gave a speech at NYU critiquing the Roe v. Wade decision holding that abortion is a fundamental right that
protects individual autonomy and privacy.
In "Speaking in a Judicial Voice," Ginsburg argued that Roe v. Wade should not have been based on the privacy doctrine, which protects individuals from unwarranted governmental interference in their private affairs.
That strategy, she argued, was too extreme and sweeping. It overturned too much, created a "storm center" of upheaval and controversy, and made the Roe v. Wade ruling vulnerable to being overturned.
Instead, she argued that the decision should have been decided on the narrower and "more cautious" grounds of equal protection.
That would have placed women’s right to abortion within the framework of women’s equality — in areas such as pregnancy, out-of-wedlock birth, and other forms of gender-based discrimination.
And that, she argued, would have been a more “restrained” and secure approach.
Ginsburg's remarks hang over the news tonight that the Supreme Court is set to overturn Roe v. Wade.
Nearly 30 years later, we can ask: Was Ginsburg right?
Should Roe have been decided on more restrained legal grounds?
Given our hyper-divisive, ideologically fractious political landscape, would it have made a difference?
Or did the Roe decision itself contribute to creating the current climate?
Legal experts and historians will debate this for years to come. You can decide what you think.
There's a link to Ginsburg's speech on judicial restraint in the Speaking While Female Speech Bank .
