Supreme Court leak confirms Ruth Bader Ginsburg’s prescient warning about Roe v. calf

The unprecedented leak of the Supreme Court’s draft opinion, Samuel Alito, in a key case cracking down on Roe v. Wade (1973) sparked heated debate and may have drawn new attention to the late Justice Ruth Bader Ginsburg’s opinion on the crucial precedent for abortion.

Although Ginsburg was a strong advocate for women’s access to abortion as a constitutional right, she was critical of the way Roe v. Wade established this right – and her rationale for this nuanced position may shed light on the current debate.

Chief Justice John Roberts confirmed that Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization was genuine — although the draft is from February and does not represent the court’s current or final opinion. In the draft, Alito Roe v. Wade, who struck down state laws across the country, and allows states to resume their own abortion laws.

Should the court indeed strike down Roe in this way, it could justify Ginsburg’s concerns about the crucial decision.

In a 1992 lecture at New York University, Ginsburg warned of major legal shifts, citing Roe as an example.

“Measured motions seem to me to be essentially correct for both constitutional and common law decisions,” she argued. “Limbs formed too quickly, experience teaches, may prove unstable. The most prominent example of the last decades is Roe v. Calf.”

Judge Samuel Alito's opinion was leaked
Judge Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization was released to the media earlier this week.
AP Photo/Pablo Martinez Monsivais

Ginsburg noted that Roe struck down far more than the specific Texas abortion law at issue in the case.

“Suppose the court had stopped there and rightly declared the most extreme type of law in the nation unconstitutional and had gone no further, like the court at Roe, to create a regime that would cover the subject, a set of rules, which will then supplant virtually all state law in force,” she said. “A less comprehensive Roe, one that merely struck down extreme Texas law and went no further that day I believe and will summarize why, may have served to reduce controversy rather than fuel it.”

Ginsburg introduced Roe v. Wade faced a case that never received a full court hearing, Struck v. Secretary of Defense. In this case, the Air Force tried to fire a female Air Force captain because she became pregnant. Although the captain’s performance as manager and nurse was exemplary, Air Force regulations required that a woman who became pregnant had to be off duty or have an abortion.

The captain refused an abortion for religious reasons and instead arranged for her child to be adopted. The Air Force tried to fire her, and she challenged the move in court. After the Supreme Court agreed to hear the case, the Air Force made an exception and allowed it to remain in service.

August Mulvihill, of Norwalk, Iowa, center, holds a sign during a rally to protest recent abortion bans, Tuesday, May 21, 2019, at the Statehouse in Des Moines, Iowa.
The leaked opinion has sparked protests in cities across the United States.
AP Photo/Charlie Neibergall

The captain argued “that the Air Force regime nastily differentiated itself by allowing men who became fathers but not women who became mothers to remain in service and by allowing women who had undergone abortions but not allowed women who gave birth to continue their military careers,” Ginsburg noted.

Ginsburg drew two conclusions from the case: first, “If even the military, an institution not known for vanguard politics, provided abortion facilities, wasn’t a decision by Roe’s Brawn unnecessary?” and second, that the court, if it had examined this alternative case, it might have concluded “that the unfavorable treatment of a woman because of her pregnancy and her reproductive choices is a prime example of sex discrimination”.

Ginsburg went on to contrast the Roe court’s landmark decision with a series of decisions from 1971 to 1982 in which the court struck down “a number of state and federal statutes that explicitly differentiated on the basis of gender.”

Instead of creating a new legal philosophy and immediately imposing it on the nation, “the court actually opened a dialogue with the political branches of the government”.

“Essentially, the court directed Congress and state legislatures: Reconsider old positions on these issues,” Ginsburg noted. “You could say the ball was thrown from the judges back into the court of law where the political forces of the day could operate.”

Alito’s opinion effectively reverses what Ginsburg has described as creating a new “regime” on abortion — a move that would be unnecessary if the court had instead worked with state legislatures and Congress to work out abortion compromises. Supreme Court leak confirms Ruth Bader Ginsburg’s prescient warning about Roe v. calf


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