In her remarks to Emily Bazelon, which I linked to on Sunday, Justice Ruth Bader Ginsburg said the following regarding Roe v. Wade, a feminist legal agenda and population control:
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.
Except she wasn’t “altogether wrong” — at least she wasn’t wrong about Roe v. Wade being “set up for Medicaid funding” and population control. Surrounding late 1960s and through the 70s, there was much public debate about the “population explosion.” In 1965, Griswold v. Connecticut struck down a law banning contraceptives. This case helped to establish the right to privacy as based in the Constitution which, in turn, was basis for Roe v. Wade.
As an example of the zeitgeist of the time, here are some excerpts from the 1972 Rockefeller Commission Report on Population Growth and the American Future. The Commission recommended that
…present state laws restricting abortion be liberalized along the lines of the New York statute, such abortion to be performed on request by duly licensed physicians under conditions of medical safety. In carrying out this policy, the Commission recommends:
That federal, state, and local governments make funds available to support abortion services in states with liberalized statutes.
That abortion be specifically included in comprehensive health insurance benefits, both public and private.
Sarah Weddington, co-counsel with her husband Ron Weddington, submitted this report as a part of her brief supporting Roe. Ron Weddington’s views were more pointed. He wrote then President-elect Clinton in 1992 and advised the president-to-be that traditional Democratic programs would not be effective unless Clinton started “immediately to eliminate the barely educated, unhealthy, and poor segment of our country.” How did Weddington propose to implement this draconian suggestion? He wrote to Clinton:
No I’m not advocating some kind of mass extinction of these unfortunate people. Crime, drugs and disease are already doing that. The problem is that their numbers are not only replaced but increased by the birth of millions of babies to people who cannot afford to have babies.
There I’ve said it. It’s what we all know is true, but we only whisper it, because we are liberals who believe in individual rights, we view any programs which might treat the disadvantaged as discriminatory, mean-spirited and well…so Republican.
…government is going to have to provide vasectomies, tubal ligations and abortions…RU486 and conventional abortions.
Weddington ended his letter with more words of sympathy for the children of poor families—and the need to prevent their existence:
We don’t need more cannon fodder. We don’t need more parishioners. We don’t need more cheap labor. We don’t need more poor babies.
So where Ginsburg was altogether wrong was not in her understanding of one of the forces behind Roe v. Wade. Where she was wrong was in her understanding of the High Court in the subsequent decisions regarding public funding of abortion. In any case, Ginsburg has been a consistent champion of tax-payer funding for abortions, even when she thought one purpose of Roe was to curb growth of “populations that we don’t want to have too many of.”
For Weddington such a policy seemed to be “discriminatory, mean-spirited and well…so Republican.” However, Ginsburg views public financing of abortion as a way to reduce, what she perceives as, gender discrimination. Which is it?
One thing seems sure. The issue of public abortion funding is as current as now. Yesterday, the Senate Health, Education, Labor and Pensions Committee rejected a bid by GOP Senators to eliminate abortion as a benefit in any government subsidized health reform package. If abortion as a benefit survives, then it will no doubt be challenged in the courts, eventually reaching the Supreme Court.
Justice Ginsburg is ready.