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.
July 10th, 2009 | 9:48 pm
Wesley, I understand your caution here. And precisely because one could make the objection you are making, I have not blogged this myself. However, I think the charge is somewhat better supported than perhaps you do. Apparently in the immediately context, Ginsberg has just been complaining about the fact that poor women don’t have government funding for abortion. She makes it very clear that she thinks government _should_ fund abortion. When the interviewer asks her what she’s talking about, if she’s talking about problems of “access,” etc. (and “access” is pro-abort code for, among other things, lack of government funding), _that_ is when Ginsberg goes into this strange thing about how she originally thought the point of Roe was eugenics. The interviewer doesn’t bring this up. She brings it up, and she does so in response to the interviewer’s question about the sorts of concerns she has about women’s “access” to abortion. Now, that’s very disturbing, because what that suggests is that in Ginsberg’s mind what she advocates–govt. funding for poor women’s abortions–is tied to the eugenics purpose she originally thought was going to be served by Roe, prior to the court’s upholding of the Hyde amendment. That is where the notion comes from that that ruling was a disappointment to her. Moreover, there is not the faintest indication that she was _against_ Roe during the time that she believed that this was one of its purposes–to get rid of undesirable populations. She could have said, “And for that reason I had some concerns about Roe.” But to the contrary. It seems that she is merely remarking that opponents of Roe had some concerns about possible coercion, that she did herself think that limiting populations “we don’t want too many of” was a purpose that would be served by Roe through constitutionally required govt. funding, and that she turned out to be wrong. The fact that apparently she has been pro-Roe all along argues at a minimum a shocking complacency about that expected eugenic purpose. So I think there is indeed something odd and disturbing about the quotation, though in true lawyer fashion she worded it in such a way that she _can_ now say that _she_ wasn’t advocating the eugenics but was merely reporting what she thought would flow from Roe.
July 10th, 2009 | 10:01 pm
I think she should have said that Lydia, for clarity. But having been interviewed often, sometimes you don’t or it gets edited out. Still, I think credibility and charity require that she not be jumped on for what there is no evidence that she believes. That happens to those on the other side of the fence from her on social issues all too often.
July 11th, 2009 | 5:54 am
I don’t know that charity really has that much play in mitigating Justice Ginsberg’s statement. Is it not in the spirit of charity that we are to take our brethren to task when they propagate error?
From a different angle, I feel that ascribing this comment of her’s to sloppiness might in and of itself be uncharitable. If nothing else, Ginsberg is a justice on the United States Supreme Court. I would hold out hope that she has a strong enough appreciation for the value of language and is a jurist accomplished enough to not so ineptly miscommunicate her thoughts.
July 11th, 2009 | 9:51 am
Wesley,
I agree with you. I think that Justice Ginsberg’s comments show that she was troubled by the possibility of a eugenics motive behind Roe. However, that admission in itself is troubling. While she later changed her mind, I would love to hear from her why she would suspect a eugenics motive for Roe in the first place.
Robert at bioethike.com
July 11th, 2009 | 12:32 pm
“Still, I think credibility and charity require that she not be jumped on for what there is no evidence that she believes”
Wesley,
Do you mean additional evidence of what she believes? I would think that the interview itself suggests what she believes, in combining her claims for access for the poor plus the comment on growth of populations using the pronoun “we.” Justices got where they are partially by being careful speakers and thinkers – using words deliberately and meaningfully is part and parcel of this training. Law school, if nothing else, teaches one to use words with care, as everything has a meaning and will be relayed. I think her statement of “we” is particularly important, given the shift to the use of “some people” later in the same response. Why treat it as a casual error?
–Jonathan
July 11th, 2009 | 1:14 pm
I’m not a fan of Ginsberg, believe me. But this part of the quote exonerates her in my view: “…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.”
To me, it is clear that she was worried about poor women or others being coerced into abortions, not yearning for certain populations to be reduced.
I think it is wrong to jump on people when they don’t speak artfully. I think that was the case here.
July 11th, 2009 | 5:08 pm
The crux of the matter is whether Justice Ginsberg does, or has ever, considered any woman a member of an “undesirable” population.
If she is concerned about poor women having equal access to a procedure their wealthy counterparts have no matter what the law, then she cannot possibly mean she considers, now or ever, that any woman is a member of an “undesirable” population.
It seems obvious to me that the “we” is merely a paraphrase of a part of the agenda of some supporters and advocates of Roe back in the day; I remember those “arguments” vividly.
And I seem to recall one of the major justifications for an abortion law was so “unwanted” babies wouldn’t be born into a society where they would only know rejection and cruelty.
A little background saves a lot of character assassination.
I am not a fan of Ginsberg or abortion in any form for any reason.
But jumping on SELECTED comments in an interview is simply a pretext for condemnation. The introduction to the original article states the comments are SELECTED and, in my understanding, probably edited as well. As Mr. Smith can ably testify, this happens all the time.
Unless Justice Ginsberg comes out and says she considers anyone a member of an “undesirable” class of people, simple integrity and honesty dictate letting this whole sordid attack on her go.
July 11th, 2009 | 6:34 pm
I believe that the eugenics stuff is so odious that Ginsberg should have to clarify that she *did not support* Roe during the time when she believed that that was its purpose. I continue to believe that the connection between her speaking of “Medicaid funding of abortion” as the mechanism of this eugenics, her bringing up the eugenics when the interviewer is asking about her *own support* for medicaid funding of abortion *right now*, and the fact that as far as we know she was a supporter of Roe before McRae is a highly problematic combination. If she was strongly pro-Roe at that time despite this perception on her part of its purpose (frankly, a perception that I think may well have been correct), she should have some explaining to do.
It’s also worth pointing out that if Medicaid funding of abortion was potentially coercive then, it is just as potentially coercive now. Even if now it is put into place by legislation and then it would have been put into place by an extension of Roe, the effect upon poor women will be the same. So why shouldn’t those same “some people” be equally concerned about public funding of abortion for poor women now? Yet Ginsberg avidly supports such funding. This is very strange. She openly states that there was this concern that some people had about potential coerciveness and eugenic purpose if Medicaid had funded abortion, yet she still supports such funding. McRae makes no difference to that concern either way.
July 12th, 2009 | 12:03 am
So much speculation on Justice Ginsberg’s beliefs, without looking at who she believes, or even if she does, is “undesirable.”
Is it poor people per se we should believe she is referring to as “undesirable”? Is this the reason she might have supported Roe, and was surprised by McRae? This is the reason she supports funding for poor women’s abortions?
The issue of Justice Ginsberg’s supposed support for euthanasia is whom she considers “undesirable” among the population, and she only mentioned wealthy women versus poor women.
So who do you suggest she thinks is undesirable and worthy of euthanasia? Poor women?
July 12th, 2009 | 11:12 am
Justice Ginsburg starts off this statement talking about her thoughts: that “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.” This is the only time she explicitly mentions her own thoughts on the implications of Roe. She goes on to say that when McRae was decided, she “realized that [her] perception of it had been altogether wrong.” So she experienced not a conversion regarding the eugenic targeting of whatever “populations” she’s talking about, but an altered perception of what the concerns of this nebulous “we” actually were. The more I look at it, the more it seems like flat-out support of eugenics.
July 12th, 2009 | 11:54 am
Why so much quibbling over her answer? I understand what she said, and if one doesn’t second or third, guess, they understand too.
Its also not difficult to understand why her comments aren’t getting more news and commentary, Her answer makes her sound like a racist elitist. Is this too harsh for your politcally correct ears?
Racist/elitist or not her words are clear, she was referring to blacks, poor whites or others who “we don’t want too many of”.
July 12th, 2009 | 3:26 pm
Cathy, she doesn’t say, and it doesn’t much matter. And I’m not saying that she does say she supports eugenics. I’m saying that the whole exchange is extremely weird and problematic in no small part because she apparently feels no concern to distance herself from the eugenics motives for Roe, because she brings up the eugenics out of the blue, and because she *now avidly supports* (this is not speculation, this is right there in the interview) public funding for abortion despite the fact that the same concerns could be raised now that could have been raised then about arm-twisting by the government and trying to get rid of poor people. How does she justify that? As I said in a comment on the group blog I belong to, on the most charitable interpretation it’s as though she thinks McRae somehow “purged” Medicaid funding for abortion of any connotations of eugenics or coercion, which is a silly implication unworthy of a legal mind!
July 12th, 2009 | 4:25 pm
All of you are quibbling. Ruth Ginsburg should be taken at her word.
But if you are that bored and need to judge what the judge is saying, I say bring in Sotomayor to sort this out. Because of her Hispanic background and sex, she is much better qualified to say what old Jewish women are thinking.
July 12th, 2009 | 6:27 pm
I believe at the time, Ginsberg opposed Roe v Wade because the issue was being handled to her satisfaction at the state legislative level (kudos to Ginsberg–too bad she didn’t apply the principles of Federalism more consistently once she donned the black robe). But it is a very curious thing to have believed and she should clarify her remarks. Does she suggest that the seven Justices in the majority were supporters of eugenics (for the “right” people, of course)? And what about the two dissenters who objected mainly on the basis that the Constitution does not recognize a right to abortion either explicitly or implicitly. For all we know, they were closet supporters of eugenics (for the “right” people, of course), too, and may have secretly wished their legal consciences had allowed them to decide with the majority. What did Ginsberg know about those gentlemen that we didn’t??
July 13th, 2009 | 9:17 am
“But what is it with sitting Justices giving policy interviews? (Scalia does it, too.)” (From the original article)
I suppose interviewers of prominent people, even of Supreme Court justices, expect to hear some opinions about how the world ought to be. Bringing up Scalia, though, places it in a curious context. The manner of the article’s making the point implies that judges should not be proposing policy. And we know that Scalia believes that judges, when they are judging, should regard it as a binding principle upon themselves that they NOT propose policy. And we know that Scalia himself, in many judicial rulings, abides by that principle. In other words, when Scalia proposes policy in a public forum, we do not fear that he will force those policies on the public in his judicial rulings. With Ginsburg and most “liberal” judges, we not only fear it, we have come to expect it.
July 13th, 2009 | 3:31 pm
Richard A., thank you. I thought of that very point and just hadn’t had a chance to make it. A justice who doesn’t believe in making policy from the bench and who, in practice, _doesn’t_ make policy from the bench has in my opinion as much of a right as any other citizen to say what policies he, as a private citizen, supports. A justice who believes in a “living constitution” and who _does_ make policy from the bench creates far more of a problem by talking about policy. Also (I don’t have time to look this up) I seem to recall that the interviewer asks her what she would push for *as a lawyer*. Now that clearly isn’t a matter of what she would try to get passed as a citizen, by lobbying legislators and so forth. If I’m remembering the context correctly, it sounds like the idea is precisely that, as a lawyer, she would want to get the judges to make this policy from the bench. Which makes the comments all the more out of place.
July 14th, 2009 | 2:10 pm
I’m amazed that there is so much concern over what is a fairly obvious statement, that she felt that the public funding of abortion could potentially lead to abuse. Considering the practices of a number of states to perform tubal ligation or hysterectomies on women deemed to be “unfit mothers”, one can imagine, given the chance, that some states might have used the Roe v. Wade decision to go one step further, and enforce or coerce Medicaid recipients (who also tend to be on welfare) into having an abortion. It is obvious that the “we” Ginsburg is using is that of the American population.
Moreover, people play far too loose with the association of eugenicists and birth-control/abortion policy. Amazingly enough people can come to support a policy for wildly divergent reasons; no one has accused Christian arguments against pornography as being the same as feminist arguments, though both may share similar policy and legal perspectives on the issue. Yet everyone seems to presume that support of abortion or birth control necessitates that one holds up the planks of some insidious eugenics movement. Certainly some individuals do, but most individuals base their support on the basis of individual autonomy; arguably thats what Roe v. Wade had to say on the matter. That may be cold comfort to opponents, but overwhelmingly most contraception and abortion proponents are not members of some neo-eugenics movement.
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