Justice Ginsburg Sets the Record Straight on Abortion and Population Control

The law, lawyers, and the court.
Oct. 19 2012 1:03 PM

Talking to Justice Ruth Bader Ginsburg

And clearing up a point of confusion—about her views on abortion—that I caused three years ago.

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Justice Ruth Bader Ginsburg

Photograph by Mandel Ngan/AFP/Getty Images.

Three years ago, I interviewed Justice Ruth Bader Ginsburg for the New York Times Magazine. At one point, we talked about the lack of Medicaid funding for abortions for poor women, because of a 1980 Supreme Court decision called Harris v. McRae. She said then:

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

The ruling surprised me. 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.

I didn’t ask the follow up question that would have given Ginsburg the chance to clarify what she meant—to explain who was concerned about population growth at the time, and in what context. Because I didn’t do that, some conservatives pounced. From Jonah Goldberg in the National Review:

Left unclear is whether Ginsburg endorses the eugenic motivation she ascribed to the passage of Roe v. Wade or whether she was merely objectively describing it. One senses that if Antonin Scalia had offered such a comment, a Times interviewer would have sought more clarity, particularly on the racial characteristics of these supposedly unwanted populations.

To imagine that Justice Ginsburg would endorse eugenics as a motivation for supporting legal abortion, you have to be out to get her. I say that because this notion is so entirely at odds with her life’s work advocating for equal rights for women, especially poor women. That’s why it didn’t occur to me at the time. It’s a gotcha, and nothing more. And for the record, I’d be just as loath to impute support for eugenics to Scalia, because he’s also never done anything to suggest that he thinks that way.

Still, yes, mea culpa—I should have sought more clarity, because that’s what journalists are supposed to do to clear up confusion, however misplaced. On Thursday I had a chance to do that, in an interview I did with Justice Ginsburg before an audience at Yale College. I read her back her 2009 quote and asked her what she meant by it.

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“Emily, you know that that line, which you quoted accurately, was vastly misinterpreted,” she said. “I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.” She continued, “In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”

I asked if she was talking about general concern in the society, as opposed to her own concern or the concern of the feminist legal community. Ginsburg said yes, and then returning to the issue of whether Congress could restrict Medicaid from covering abortion, added, “But I turned out to be wrong. Not too long after Roe v. Wade”—in Harris v. McRae— “the Supreme Court said it was OK to deny Medicaid funding for even therapeutic abortions.”

I asked if the idea of a link between concern about population growth and the court’s rulings on abortion turned out to be wrong. Justice Ginsburg said yes, stating the obvious: After all Roe v. Wade and the decisions that came after it are rooted in the right to privacy.

The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later. Justice Ginsburg herself has never made a population control argument for abortion. These were two different rationales promoted by two different movements. Justice Ginsburg touched on this today as well. She said that in the 1970s, when the ACLU women’s rights project sought funding from the Rockefeller Foundation—one of the groups worrying about overpopulation—the foundation “was not interested in the women’s rights business.”

Justice Ginsburg also made it clear today that the issue she had in mind when we spoke in 2009 was concern about population growth among all classes (and races). In the end, if that concern has a legacy, it’s in the promotion of contraception. But of course social conservatives never want birth control to be the focus of a discussion about reproductive rights, because on that ground they lose.

Two (more fun) tidbits from today’s interview: Justice Ginsburg failed her driving license test five times. And if she hadn’t gone into law, she would have wanted to become a diva—an opera singer. But when she was a child in elementary school, and the robins were divided from the sparrows, she was always a sparrow.

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