Much is being made in certain circles of U.S. Supreme Court Justice Ginsberg stating in an interview to be published in the next issue of the New York Times Magazine, that she thought Roe v. Wade would be used to reduce the birth rate of certain populations “that we don’t want too many of.”  This sounds bad, and indeed reminiscent of the original reason that crass eugenicist and social Darwinist Margaret Sanger advocated birth control.  But I think too much is being made.  From the story quoting the interview transcript:

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 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.

But reading the question and its context, she seems to be saying that since Medicaid cannot pay for abortion under the Hyde Amendment, and since the Supreme Court upheld the Hyde Amendment, that concern about the Supreme Court’s motive—intending to reduce certain populations—ceased to be germane. That isn’t the same thing at all as saying she had wanted there to be fewer of certain populations. From the excerpt of her interview that I have seen, I don’t think that charge sticks.

But what is it with sitting Justices giving policy interviews? (Scalia does it, too.) And get this line:
Her comment about her belief that the court had wanted to limit certain populations through abortion came after the interviewer asked Ginsburg: “If you were a lawyer again, what would you want to accomplish as a future feminist agenda?”

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

Ginsberg should have said that she is not in the position of an advocate for the feminist agenda and refused to answer.  Instead, she gave a strong policy opionion, resorting to undiluted advocacy lexicon, thereby badly undermining any claim that she can decide a case about abortion and poor women based solely on the facts and law. Frankly, Ginsberg should recuse herself every time an abortion case comes before the court.

Yes, yes: I know she won’t. But she should.

Articles by Wesley J. Smith

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