Earlier this year, the U.S. Supreme Court voted to reject Texas' latest anti-abortion law. The bill provides that abortion is prohibited for women over 6 weeks of pregnancy. At the same time, the bill allows private prosecution of anyone deemed to have helped a patient have an abortion, and there will be no exceptions to cases involving rape or incest. The bill is also considered the "strictest" anti-abortion bill in the United States.
In the United States, the history of legalization of abortion is not long, and the controversy surrounding the legality of abortion and abortion policy has never stopped. Among them, Roe v. Wade has been a representative case cited by the pro-abortion party. Ginsburg's critique of Roy's case is considered the most controversial part of her constitutional record. In fact, Ginsburg did not object to the Roy verdict, she criticized the reasons for the Roy verdict. In Ginsburg's view, the Roy ruling is rooted in the right to privacy, not the equality of women, which makes it likely that women still do not have full physical autonomy and choice. She insisted that equality was the most reliable constitutional basis for the right to choose.
From the passage of HB314 in Alabama in 2019 to the recent entry into force of the Texas Anti-Abortion Act, how do we understand the cultural, religious, and political wars surrounding abortion in American society? How do we examine the results and legacy of Roe v. Wade? The following is an excerpt from the "Roy Case" chapter of "Ginsburg's Interview: RBG's Voice to Future Generations" with the permission of the publisher, which includes Ginsburg's thoughts and questions on many issues in the Roy case. Slightly reduced from the original text, subheadings are prepared by the editors.
Ginsburg Interview: RBG's Voice for Future Generations, by Jeffrey Rosen, translated by Lei Li, yazhong Culture | Foreign Language Teaching and Research Press, October 2021.
Author | Jeffrey Rosen
Excerpts | Qingqingzi
When Ruth Bud Ginsburg was nominated to the Supreme Court, the most controversial part of her constitutional record was her criticism of the legal reasoning in Roe v. Wade. She argues that the Roy decision was too broad to keep public opinion up to the court, a view that has drawn opposition from some feminist groups. Ginsburg argues that if the Supreme Court had simply overturned the controversial Texas law in the case in 1973 and resisted the temptation to impose a national framework on abortion, the case could have sparked fewer backlash while allowing a growing number of state legislatures to recognize the choice of fertility on their own.
Those feminists who criticized her in the 1990s did not realize that Ginsburg was laying a more solid constitutional foundation for reproductive choice, which was rooted in women's right to equality, not privacy. Ginsburg expanded on her arguments as a defense lawyer in the 1970s, insisting that it was better not to interpret restrictions on abortion as a private issue between women and male doctors; rather, they limited women's ability to define their own life choices, imposed a burden that men did not have to bear, and thus violated the constitutional equal rights of women. Ginsburg insisted that the ruling in Roe v. Wade would have been more persuasive constitutionally if it had been based on the Constitution's equal protection clause rather than a due process clause.
Stills from the documentary "Justice Ginsburg RBG" (2018).
Ginsburg's criticism proved prescient. In June 1992, the Supreme Court upheld a Roy opinion in Southeastern Pennsylvania v. Casey, which tacitly acknowledged that restrictions on abortion did concern women's rights to equality and privacy, much to the surprise of both liberals and conservatives.
A few months later, Ginsburg delivered her Madison speech at NYU Law School called "Speaking with the Voice of justice," which President Clinton mentioned to Senator Moynihan and the reason for his concern that "women are against her." In this speech, Ginsburg praised Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter for writing in the Case of Cases that recognized a woman's "ability to control [her] reproductive period" and her "equal participation in the economic and social life of the country... There is a strong link between the capabilities of "the ability. In particular, Ginsburg noted that women's right to equality was a less prominent theme in the Roy case, which had "added the right of pregnant women to freely perform their medical orders," and she said that if the ruling focused more precisely on women's equal rights, the Roy case might not be so controversial.
In her speech, Ginsburg also criticized the "exciting" opinion in The Roy case, which she considered not prudent enough. The justices created a comprehensive set of statutes for the entire country, not just overturning the controversial Texas abortion ban in the case,which stipulates that only life-saving medical procedures can be made out of the law, and engaging in dialogue with state legislatures. Ginsburg asked: "Suppose the Supreme Court stops here and reasonably declares this law, the country's most extreme mark, unconstitutional, rather than further creating a system or a set of rules that comprehensively covers the issue as it did in the Roy case to replace almost all state laws that were in effect at the time, then a less all-encompassing Roy case, a Roy case that merely overturns the extreme law of Texas and does not move forward any further... It may help reduce, rather than exacerbate, controversy. "Ginsburg compares the Roy case that sparked the anti-abortion movement and sparked a legislative backlash with those gender cases she filed in the 1970s, where the court began a dialogue with state legislatures and steered them slowly in a more liberal direction." The difference between most post-1970 sex classification cases and roe cases is that the Supreme Court... "The Roy case, on the other hand, has blocked a political process moving in the direction of change, so I think it prolongs divisions and delays a stable resolution of the issue," she concluded. ”
From the lawsuits Ginsburg has taken over since the 1970s, we can find the roots of her criticism of Roe's case. In the 1972 case of Straker v. Secretary of Defense, Ginsburg first made her argument that "adverse treatment" based on pregnancy amounted to sexism. Ginsburg challenged a rule requiring all women in the Air Force to be discharged from the military immediately after pregnancy, noting that the provision amounted to unconstitutional sexism because it treated pregnancy much harsher than other attitudes that affected both men and women. As the case later lost practical significance, Ginsburg was eventually unable to persuade the Supreme Court to adopt her views, but she had sown a seed.
Although Ginsburg criticized the Roy decision, she never publicly questioned the constitutional basis of the right to privacy itself. In her pleadings in straker, she noted: "Personal privacy in relation to procreation and intimate personal relationships is a right that is firmly embedded in the traditions of this country and in the jurisprudence of the Supreme Court. Despite Ginsburg's criticism of the overdoing in the Roy case, her alternative position on abortion rights may have broader clout. In a 1984 speech at the University of North Carolina, she made it clear that the government had an affirmative obligation to fund abortions for poor women. She said a federal law called the Hyde Amendment, upheld by the Supreme Court in 1980, violated the right to equality of poor women because the law required the government to fund all necessary medical procedures, with the exception of abortion. She concluded: "If the Supreme Court recognizes a woman's equality in reproductive choices, then most people would probably see such public aid cases as— to borrow Justice Stevens, as examples of sovereigns violating their 'duty to govern fairly.'" ”
Ginsburg's central premise is that anti-abortion laws, like employment discrimination against pregnant women, are based on "stereotypical assumptions" that women are considered caregivers. Today, pro-abortion choice scholars, defense lawyers, and other citizens, including millions of young women, have embraced her emphasis on equality, rather than privacy, that equality is the most reliable constitutional basis for the right to choose.
In addition, Ginsburg's prediction that the Supreme Court would gradually weaken the impact of the Roy case proved justified. As she put it in her Madison speech: "Experience tells us that theoretical branches, if they form too quickly, may be unstable." The first sign of the ebb tide came in Gonzalez v. Cahat in 2007, a 5-4 vote decision handed down by the Supreme Court, in which justice Kennedy wrote a majority opinion upholding the federal government's 2003 ban on so-called "late pregnancy abortion." Ginsburg wrote a fierce dissent, calling Kennedy's ruling "shocking" and specifically criticizing his claim that women who had abortions may eventually regret their decisions, and that it was "self-evident." Ginsburg writes: "This way of thinking reflects some of the oldest notions about women's status in the home that, under the Constitution, have long since failed to be trusted." She never forgot Kennedy's vote; in 2011, I wrote in The New Republic that Kennedy "sided with the liberals in voting on laws restricting abortion and gay rights," writing against it: "Your views on gay rights may be (so far) accurate, but what about Gonzalez v. Kahalt and the previous Steinberg v. Kahatt case?" In Steinberg v. Kahart, didn't Kennedy disagree in the Supreme Court's 5-4 vote ruling on repealing state bans on late-trimester abortion? Still, Ginsburg has always sought consensus in abortion cases where she can find consensus. She joined the ruling in McAllen v. Corkley in 2014, when the Supreme Court unanimously overturned Massachusetts' law establishing a 35-foot (about 10.7-meter) buffer zone around abortion clinics, on the grounds that restricting anti-abortion activities in this way violated the First Amendment rights of protesters.
During our conversation, I repeatedly asked Justice Ginsburg if he thought the Roy case would be overturned. After Justice O'Connor retired in 2006, Ginsburg repeatedly said she was concerned that the Roy case would be restricted, with poor women living in areas where abortion rights were already restricted would be most affected. But in 2018, a month after Justice Kennedy retired, she told me she had half-belief hopes — that the Supreme Court would not arbitrarily overturn the landmark precedent and that the core of Roy's guarantee of early pregnancy birth choices would be preserved.
Could roe's case be overturned?
Jeffrey Rosen ( "Rowe"): Will Roe v. Wade be overturned?
GINSBURG ("King"): In case case Case, the Supreme Court had the opportunity to overturn it. There is a strong opinion on behalf of Justice O'Connor, Justice Kennedy, and Justice Sutter that Roe v. Wade has been the law of the land since 1973, that we respect precedent and that Roe v. Wade should not be overturned. If the Supreme Court insists on that position, the case won't be overturned, and it doesn't matter whether the president is democratic or Republican.
Rowe: If the Roy case were overturned, how serious would the consequences be?
KING: That would be bad for women who are not wealthy. If we imagine the worst-case scenario, roy v. Wade overturned, there will still be many states that will not go back. It doesn't matter what Congress or the state legislature does, there are always other states that offer that facility, and women can do it as long as they can afford it. Only women who can't afford to pay are affected.
Roe v. Wade was decided in 1973. Both generations of young women have grown up to realize that they can control their fertility and, indeed, control their own destiny. We will never go back to the way we used to be. Roy v. Wade was not much of a controversy in that era. It was a 7-2 vote ruling, with only two dissenting. Even while Roe v. Wade was still in progress, women in four states already had the right to have abortions in safety and legality, at least in the early stages of pregnancy, if they wanted to, and now there are far more than four states. This means that any woman who has the money to travel, fly or train to a state where abortions can be had this problem does not exist. Any woman who has the means to travel to another state — you don't even have to go to Japan or Cuba — can have an abortion safely. So what's affected is the poor — no matter what laws a state has, no matter what the Supreme Court decides — only poor women suffer, and I think if people could realize that, their attitudes might be different.
In 1977, American women took to the streets of New York to demand safe and legal abortion rights for all women.
JB: How can defense lawyers ensure poor women's reproductive choices? Can the legislature be trusted? Or is it necessary for the courts to be vigilant?
KING: Given these restrictions imposed by the states, how else can you trust the legislature? Think of Texas legislation, which would cause most clinics to close. Nor is the court credible. Recall the ruling in (Gonzalez v. Cahat), which goes back to the two rulings that refused to cover Medicaid to abortion. I don't think it's a question of court versus the legislature. I see both of these going in the wrong direction. This problem needs to be addressed by those who care about poor women. Ironically and tragically, any rich woman can go somewhere in the United States to have a safe abortion, but a woman who lacks travel money or has to go to work cannot. Not many voters will care about this restriction on the rights of poor women.
JB: How do you create voters who care about that right?
KING: First of all, the initiatives of human rights groups can have a huge response. Back in the 1980s, when I gave a lecture at Duke University, I didn't specifically mention abortion, I was talking about providing equal opportunities for women, making them who their talents allowed them to be, and not putting artificial barriers on them. During the question session, an African-American man commented: "We all know what you pure white women are thinking. You just want to kill black babies. "That's how some in the African-American community feel about this right-of-choice movement." So I think it would be helpful if civil rights organizations could focus on the impact of the lack of choice on African-American women.
At the end of the day, people have to organize themselves. Think of the Pregnancy Discrimination Act. The Supreme Court had said that discrimination on the basis of pregnancy was not discrimination on the basis of sex, and that a coalition group had organized to get the Pregnancy Discrimination Act passed. The ACLU was a central player, but all were supportive. This must start with the people. Without this impetus, the legislature will not act.
Row: This is a different version of the question: What mistakes did the Supreme Court make in Roy, and how can similar mistakes be circumvented in other cases?
KING: That law in Texas is the most extreme in the country. Women are not allowed to have abortions unless their lives must be saved. It doesn't matter if it ruins women's health, it doesn't matter whether they get pregnant because of brutal rape or incest. So after the case is brought before the Supreme Court, the Supreme Court can simply say that this is too extreme. It doesn't respect women's right to liberty at all, so it's unconstitutional, period. When the great constitutional scholar Paul Freund was asked what he thought of the Roy v. Wade decision, he said it was like a grandmother showing off her grandson/grandson in order to impress her friends, so he asked him, "Do you know how bananas are spelled?" The child replied, "Well, I know how to start spelling, but I just don't know where to stop." ”
In Roe v. Wade's day, the issue pervaded state legislatures. Sometimes the people who espouse the option win, sometimes they lose, but they organize and gain political experience. This supreme court decision made every similar law in this country directly unconstitutional in a flash, even the most enlightened. So the guys who won said, "Fantastic, we did it, we won completely." This is a victory for the Supreme Court." What happened next? Opposition has risen and fallen, not state-by-state trench warfare to preserve abortion restriction laws, but with a clear target: unelected Supreme Court justices. So the argument is that it was the elected members of parliament who could make this decision, not the nine old men at the time.
This law was in a state of flux. There are a number of states, including my hometown of New York, that used to allow women to have safe abortions early in pregnancy without any problems. Four states take this position; others need to provide a reason to allow abortion — women's health, rape, and incest. So this law is in a state of change. I think it would be more beneficial if this change could be sustained. The Supreme Court was supposed to repeal the most extreme laws, and then the states would have reacted to it. The Supreme Court usually doesn't take big steps, it moves forward. For this cautious way of doing things, Roe v. Wade is a dramatic exception.
What are the issues with the reasons for the Roy decision?
Luo: You criticized the Supreme Court at that time because they were ahead of public opinion in the Roy case.
KING: The Supreme Court is a responsive body. You will respond to disputes brought before the Supreme Court. In Roe v. Wade, I should have made it very clear — I think the result is absolutely correct. That Texas law is the most extreme in the nation; the Supreme Court could have ruled (only) on the cases before it, which is the way it normally operates. It was supposed to rule that Texas law was unconstitutional, and there was no need to declare all the country's laws relating to abortion unconstitutional, even the most enlightened laws. This is not the usual way the court operates. It shouldn't take big strides.
I know there are a lot of people right now who think my judgment of this case is wrong. I know that long before the Roy case, there was a very strong right to life movement; But they now have a target that didn't exist before Roy's case.
Another aspect of my criticism is that if you read Roe v. Wade, you get the impression that this is primarily a case of the rights of doctors—the right of doctors to do what he thinks the patient needs. You also get the impression that there is a doctor and a little woman among them – there will never be only one woman. It was always a woman who was consulting her doctor. My idea of how the right to choose should develop is not about the concept of privacy or the right of the doctor, but only about a woman's right to control her own destiny, allowing her to make choices in a country that doesn't tell her what she can and can't do.
During the 1973 decision in Roe v. Wade, the scope of the individual's right to privacy was debated.
Luo Luo: This is your great contribution to the jurisprudence of gender equality. Do you think the Supreme Court will one day finally recognize abortion rights as an issue involving sexism?
KING: Well, I think that theme was reflected in the Casey decision. The Supreme Court had a chance to overturn Roe v. Wade, but it said: "No, generations have grown up knowing — girls have learned — that if they need it, they can do it." "The Casey ruling instilled a healthy notion that abortion must depend on a woman's choice.
RCR: Your objection in Gonzalez v. Cahat criticized the Supreme Court for deviating from the principle of equality that had been recognized in Casey.
KING: It was a late pregnancy abortion case. The reason I'm concerned about the Supreme Court's attitude is that they don't see this woman as a real adult. The opinion says that this woman will regret her choice in her lifetime. This is not at all what the Supreme Court should have thought of or said. Adult women are able to determine the direction of their lives and are no less than men. So yeah, I think the Supreme Court went too far in the Kahat case. It's a new form of "Big Brother must ensure that women are protected from their own weakness and childish miscalculation."
RB: You object to the paternalistic argument in the majority view that women need to be protected from their choices, which means that they may regret their choices and change their minds after reconsidering them.
KING: Yeah, they think it's important to make sure women are protected from their own miscalculations, and over time, they'll realize they've made a terrible mistake. But adults make mistakes. They are all adults. They have the right to make their own judgments.
Controversy surrounding abortion policy
Row: In McAllen v. Cockley, the opinions involving the First Amendment and abortion clinics seem to be unanimous, but you also point out that some of these seemingly agreed cases actually have deep divergences. Tell us about this case.
KING: The case started when Massachusetts wanted to deal with demonstrators in front of abortion clinics. The local legislature passed a law saying we were going to set up a 35-foot buffer zone around the clinic, and that unrelated people and so on could not cross that line. The lawsuit in this case was brought by a group of women who claimed to be counselors, who said, we didn't throw rocks, we didn't yell, we just wanted to talk to the women before they walked into the clinic and tell them that there were other options. But we couldn't get close to them because of this 35-foot buffer zone. The Supreme Court has ruled in a key way that state governments can restrict speech when it endangers others. So for the raucous demonstrators, Massachusetts can take steps against them to protect those who want to enter the clinic. But Massachusetts went overboard because video showed some clinics had never seen a demonstrator before. Most of the demonstrators went to clinics in Boston, mostly on Saturdays. So the Supreme Court ruled, yes, you can have some restrictive provisions to protect those who come into the clinic, but you can't go too far so that people like the plaintiff in this case are subject to it. The Supreme Court's directive, Massachusetts, is to rethink your laws and think of what is less restrictive, that there is no need to set up a 35-foot buffer zone day and night in every place.
The Supreme Court's first step— can you enact these laws against people who are trying to obstruct people's access to clinics? - There are strong differences. The Supreme Court said, yes, you can. The Supreme Court has been divided on this issue, which is very important because when the legislature passes a law to protect the clinic gates, as long as they do it reasonably, as long as they don't do it too much, then it's fine. That was the gist of the case.
After Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh, I asked Justice Ginsburg again in an interview if she thought Roy v. Wade would be overturned. -
Luo Luo: The last time we talked was a year ago, when you had half-belief that the Roy case would not be overturned.
KING: I still see it that way. One reason I'm hopeful is to think of the old chief (William Renquist). When we are confronted with "Should the Miranda case be overturned?" "He saved the case when it came to this question, although I don't even know how many times he criticized the case. If you compare this to Renquist's ruling in favor of the Family and Medical Leave Act, you wouldn't think it was a justice who sat on the bench in the '70s. Roberts had worked as a judge's assistant to Renquist.
RB: Do you think Justice Kavanaugh will vote like Kennedy did?
KING: Probably not on some issues that would be controversial.
Luo: So it all depends on the chief justice, who is now the center of the Supreme Court, and a lot of things have to be decided by him.
KING: Kavanaugh worked as Kennedy's paralegal judge, and I think that was my first year on the Supreme Court.
W. Roy: What do you think of the new fetal life laws that challenge the heart of Roy's case and claim that life begins from the moment of conception?
KING: Some states prohibit abortion when a doctor can hear a fetal heartbeat. This time can be around 6 weeks, and some women don't even know they're pregnant. But it comes down to the same thing. Even in the worst-case scenario, when the Roy case is overturned, any rich woman can go somewhere in the United States to have a safe abortion; there will be core states that will never return to that period of unsafe abortion in the dark alleys. So only poor women have no choice, and rich women can decide for themselves. Does this still make sense as a national policy?
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