September 30, 2014 — In a wide-ranging interview with the New Republic's Jeffrey Rosen, Supreme Court Justice Ruth Bader Ginsburg explains why she believes Roe v. Wade will remain "the law of the land," her thoughts on states' increasing restrictions on abortion rights and her dissent in Burwell v. Hobby Lobby, among other topics.
On Roe v. Wade
Ginsburg does not believe that the Supreme Court will overturn Roe v. Wade anytime soon, even if a Republican is elected president. She noted that the "Court had an opportunity" to overturn Roe in Planned Parenthood v. Casey and did not, with Justices Sandra Day O'Connor, David Souter and Anthony Kennedy issuing a "strong opinion" that reaffirmed Roe. She added that if the justices continue to follow the logic of respecting Roe as precedent, "there will be no overruling and it won't matter whether it's a Democratic president or a Republican president."
When asked what the consequences would be if Roe were overturned, Ginsburg said, "It would be bad for non-affluent women," adding, "It doesn't matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can't pay are the only women who would be affected."
On States, Courts 'Moving in the Wrong Direction'
Responding to questions about protecting low-income women's access to reproductive health services and whether "legislatures [can] be trusted or ... courts [must] remain vigilant" to do so, Ginsburg said that both the courts and state legislatures "have been moving in the wrong direction."
She asked, "How could you trust legislatures in view of the [abortion] restrictions states are imposing?" She cited "Texas legislation [HB 2] that would put most clinics out of business" as an example, adding that in light of the Supreme Court's Gonzales v. Carhart decision -- which upheld a federal law banning a procedure used in late abortions -- and rulings denying Medicaid coverage for abortion, "[t]he courts can't be trusted either."
She continued, "The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel can't. There is no big constituency out there concerned about access restrictions on poor women." She noted, "It must start with the people. Legislatures are not going to move without that kind of propulsion."
On Hobby Lobby
Ginsburg explained that while Justices Stephen Breyer and Elena Kagan disagreed with some details of her dissent in Hobby Lobby, they "all agreed on what was most important," which was that "no one who is in business for profit can foist his or her beliefs on a workforce that includes many people who do not share those beliefs." She stressed that none of the justices doubted the sincerity of Hobby Lobby's owners' beliefs, but "[t]he simple point is, we have the right to speak freely, to exercise religion freely, with this key limit."
On the Carhart Decision
Ginsburg called the court's decision in Carhart "way out of line," adding that she is particularly troubled by the majority's "attitude" of "looking at the woman as not really an adult individual" and stating in its opinion "that the woman would live to regret her choice." She continued, "Adult women are able to make decisions about their own lives' course no less than men are," and Carhart "was a new form of 'Big Brother must protect the woman against her own weakness and immature misjudgment'" (Rosen, New Republic, 9/28).