Supreme Court Justice Ruth Bader Ginsburg caused a stir in July 2009 when she made comments about the Roe v. Wade abortion case that appeared racist. In an interview with the New York Times, Ginsburg said made it appear she supported Roe for population control reasons targeting minorities.
Roe is the 1973 Supreme Court decision that, along with Doe v. Bolton, allowed virtually unlimited abortions for any reason throughout pregnancy.
Ginsburg first advocated taxpayer funding of abortions and followed it up by saying she backed Roe to eliminate “populations that we don’t want to have too many of.”
“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,” she said then.
Reporter Emily Bazelon then asked Ginsburg a question about what she meant and Ginsburg responded that the 1980 Harris v. McRae ruling upholding the Hyde amendment, which prohibits federal taxpayer funding of abortions, surprised her.
“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,” Ginsburg said.
Now, Bazelon has written a follow up article, in which she reports Ginsburg “made it clear today that the issue she had in mind when we spoke in 2009 was concern about population growth among all classes (and races).”
“Emily, you know that that line, which you quoted accurately, was vastly misinterpreted,” Ginsbug said. “I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.” She continued, “In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”
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I asked if she was talking about general concern in the society, as opposed to her own concern or the concern of the feminist legal community. Ginsburg said yes, and then returning to the issue of whether Congress could restrict Medicaid from covering abortion, added, “But I turned out to be wrong. Not too long after Roe v. Wade”—in Harris v. McRae— “the Supreme Court said it was OK to deny Medicaid funding for even therapeutic abortions.”
I asked if the idea of a link between concern about population growth and the court’s rulings on abortion turned out to be wrong. Justice Ginsburg said yes, stating the obvious: After all Roe v. Wade and the decisions that came after it are rooted in the right to privacy.
The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later. Justice Ginsburg herself has never made a population control argument for abortion. These were two different rationales promoted by two different movements. Justice Ginsburg touched on this today as well. She said that in the 1970s, when the ACLU women’s rights project sought funding from the Rockefeller Foundation—one of the groups worrying about overpopulation—the foundation “was not interested in the women’s rights business.”
Justice Ginsburg also made it clear today that the issue she had in mind when we spoke in 2009 was concern about population growth among all classes (and races).