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.
Our friend and colleague Tom Blumer at Newsbusters has some great analysis on this one that I cannot dispute:
It's pretty hard not to see Ginsburg's early perception of Roe as legalizing a convenient means for minimizing the number of poor, who "just happen" to be disproportionately non-white. Also recall that at the time, Medicaid was a program predominantly benefitting only the poor, and not the near middle-class entitlement into which more recent Congresses have morphed it.
Given Ginsburg's stated "at the time" position, there's little doubt that she would have declared the Hyde Amendment, which "barred the use of federal Medicaid funds for abortions except where the life of the mother would be endangered or in cases of rape or incest," unconstitutional. In the related case, Harris v. McRae, the Court upheld the Hyde Amendment by a 5-4 vote.
In its November 30, 2007 Henry Hyde obituary, the Washington Post quoted Dr. Wanda Franz, president of the National Right to Life Committee, who asserted that, "By conservative estimate, well over one million Americans are alive today because of the Hyde Amendment -- more likely two million."
So 1-2 million babies have been born into financially poor circumstances in the three-plus decades years since the Hyde Amendment became law. This apparently doesn't please Justice Ginsburg, or perhaps didn't please her at the time.
Ginsburg gets the wiggle room, in my opinion, because she told Bazelon that she "realized that my perception of it had been altogether wrong." The problem is that we can't tell what "it" is. Is it Roe v. Wade, the Hyde Amendment, or the facts and circumstances of the specific case?
Well, since Ginsburg considers herself a progressive, remember it was the early progressive movement of the 20th century that argued for some eugenic practices, including segregating the infirm from the firm, as well as looking at racial and genetic purity.....
And I wonder what the African American community thinks of such comments, considering that most aborted babies today are African American? Does Ginsburg think they are a population we need less of? Or is it just poor white folk?
The reporter is too dense to realize she had a great place for a followup, or she simply didn't care because she agrees with the eugenicist view of the judge....