As Sonia Sotomayor was readying for her confirmation hearings, The New York Times Magazine cast a loving gaze toward the lone female Supreme Court justice, Ruth Bader Ginsburg. In so doing, the Times inadvertently shed light on some remarkable thinking by Justice Ginsburg. Those thoughts are so bracing that they ought to upstage the abortion questions surrounding the Sotomayor nomination.
Ginsburg long ago declared her support for Roe v. Wade. Now, however, she has declared something more.
When the subject in her interview with the Times' Emily Bazelon turned to abortion, Ginsburg said, "Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. . . . 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."
Bazelon then asked, "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?"
Ginsburg replied, "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."
Ginsburg is correct in noting that concerns about population growth animated many of those who backed Roe v. Wade. For instance, Sarah Weddington, co-counsel in Roe, along with her then-husband, Ron, wrote in her book A Question of Choice that team Weddington submitted as evidence the controversial 1972 Rockefeller Commission Report on Population Growth and the American Future, which included a call for public funding of abortion.
As for Ron Weddington, his views are even more direct, as was evident in a January 1993 letter to President-elect Bill Clinton. Weddington advised Clinton to strive "immediately to eliminate the barely educated, unhealthy, and poor segment of our country."
How did Weddington propose to implement this draconian suggestion? In his letter to Clinton, he candidly wrote, "[G]overnment is going to have to provide vasectomies, tubal ligations and abortions . . . RU486 and conventional abortions."
Weddington ended his letter with more words of sympathy for the poor: "We don't need more cannon fodder. We don't need more parishioners. We don't need more cheap labor. We don't need more poor babies."
A year later it was Clinton who appointed Ruth Bader Ginsburg to the Supreme Court. For Ginsburg, that path was paved with help from one of the Weddingtons. As Sarah Weddington said in a 2007 interview, "I've also known Ruth Bader Ginsburg for years, and helped her get her appointment."
Thanks to The New York Times Magazine, it looks like the Weddingtons and Ginsburg may be kindred spirits more than we had realized.
In fact, the Times piece prompts us to reconsider previous Ginsburg statements relating to "populations" that the justice doesn't "want to have too many of."
For instance, in an April 6, 1984, address to the University of North Carolina School of Law, published in the North Carolina Law Review, Justice Ginsburg described a 1971 speech where she faced tough questions on abortion policy:
"The questions were pressed by black men. The suggestion, not thinly veiled, was that legislative reform and litigation regarding abortion might have less to do with individual autonomy or discrimination against women than with restricting population growth among oppressed minorities. The strong word 'genocide' was uttered more than once. It is a notable irony that as constitutional law in this domain has unfolded, women who are not poor have achieved access to abortion with relative ease; for poor women, however, a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days."
Ironic indeed. Instead of reducing "cannon fodder and cheap labor" via abortion, as the Weddingtons of the world had hoped, the Supreme Court upheld congressional bans on federal funding of abortion. According to her recent interview, Ginsburg was surprised the court upheld such bans. She continues to lament the fact that government does not fund abortions. Why?
Ginsburg's comments to The New York Times Magazine open a floodgate of disturbing questions regarding a sitting U.S. Supreme Court Justice. Perhaps even more amazing than her comments was the lack of clarification or follow up from the Times. Maybe another newspaper can do the job. These questions are too serious to be left to speculation.
Warren Throckmorton and Paul Kengor are professors at Grove City College in Pennsylvania.