March 25, 2013 — Supreme Court justices hearing two cases on same-sex marriage this week "will be working in the shadow" of the court's 1973 Roe v. Wade decision, which some argue was a mistimed overreach as the abortion-rights debate developed at the state level, the New York Times reports.
According to the Times, several briefs from opponents of same-sex marriage reference the court's Roe decision as evidence that states should be allowed to decide contentious issues themselves, without the high court stepping in to set a national standard.
In particular, some opponents point to critiques of Roe by Justice Ruth Bader Ginsburg, who has suggested that the 1973 court should have only struck down the Texas abortion law that was at issue in the case and not issued a wider ruling prohibiting states from outlawing abortion.
During a speech at Columbia Law School in 2012, Ginsburg said, "It's not that the judgment [on Roe] was wrong, but it moved too far, too fast." Ginsburg also has argued that Roe further polarized the issue and damaged the high court's authority. "The Supreme Court's decision was a perfect rallying point for people who disagreed with the notion that [abortion] should be a woman's choice," she said in 2008, adding, "They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges."
Lessons for Same-Sex Marriage Case
John Eastman -- a law professor at Chapman University and chair of the National Organization for Marriage, which opposes same-sex marriage -- said the justices in Roe "thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it." He added, "The lesson they should draw is that when you are moving beyond the clear command of the Constitution, you should be very hesitant about shutting down a political debate."
However, in an upcoming article in the journal Discourse, Linda Greenhouse -- a former Supreme Court reporter for the Times who now teaches at Yale University Law School -- and Reva Siegel -- also of Yale -- argue that the timing was right for the court to take broad action. "Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority." They add, "It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand" (Liptak, New York Times, 2/23).