In Interview With Elle Magazine, Ginsburg Critiques Supreme Court Decisions That Infringe On Reproductive Rights For Low-Income Women

Justice Ruth Bader Ginsburg: “The Impact Of All These Restrictions Is On Poor Women.” In a recent interview with Elle magazine, Ginsburg was asked about the Supreme Court's recent decision in Burwell v. Hobby Lobby, a decision by the conservative justices that made it possible for religious employers to deny contraceptive coverage to their employees. Ginsburg accurately pointed out that the rollback of reproductive rights in cases like Hobby Lobby have a significant and disproportionate impact on low-income women:

Fifty years from now, which decisions in your tenure do you think will be the most significant?

Well, I think 50 years from now, people will not be able to understand Hobby Lobby. Oh, and I think on the issue of choice, one of the reasons, to be frank, that there's not so much pro-choice activity is that young women, including my daughter and my granddaughter, have grown up in a world where they know if they need an abortion, they can get it. Not that either one of them has had one, but it's comforting to know if they need it, they can get it.

The impact of all these restrictions is on poor women, because women who have means, if their state doesn't provide access, another state does. I think that the country will wake up and see that it can never go back to [abortions just] for women who can afford to travel to a neighboring state ...

When people realize that poor women are being disproportionately affected, that's when everyone will wake up? That seems very optimistic to me.

Yes, I think so. ... It makes no sense as a national policy to promote birth only among poor people.

When it comes to abortion rights, does the pendulum have to swing in a more conservative direction before it starts to swing back?

No, I think it's gotten about as conservative as it will get. [Elle, October 2014]

Elle Interview Gives National Review Online Fresh Opportunity To Attack Ginsburg Comments From 2009

NRO's Jonah Goldberg in 2009: “Left Unclear Is Whether Ginsburg Endorses The Eugenic Motivation She Ascribed” To The Supreme Court's Decision In Roe v. Wade. In 2009, Ginsburg gave an interview with Emily Bazelon of the New York Times Magazine where she referred to the overpopulation warnings of the late 1960s and early 1970s and stated that she 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,” an explanation for the case that was proved wrong when the Court later ruled against federal funding for abortions. Goldberg jumped on these comments, suggesting that Ginsburg's response might be evidence she believes in eugenics:

The comment, which bizarrely elicited no follow-up from Bazelon or any further coverage from the New York Times -- or any other major news outlet -- was in the context of Medicaid funding for abortion. Ginsburg was surprised when the Supreme Court in 1980 barred taxpayer support for abortions for poor women. After all, if poverty partly described the population you had “too many of,” you would want to subsidize it in order to expedite the reduction of unwanted populations.

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. [National Review Online, 7/15/09]

NRO's Kevin Williamson in 2014: Ginsburg's Elle Interview Proof Of Her “Desire To See As Many Poor Children Killed As Is Feasibly Possible.” Williamson attacked Ginsburg's new comments where she once again pointed out that the denial of reproductive rights in this country still falls disproportionately on poor women and claimed the interview was “not her first time weighing in on the question of what by any intellectually honest standard must be described as eugenics.” Williamson went on to claim that Ginsburg sees “human beings [as] a liability”:

Ruth Bader Ginsburg, having decided for some inexplicable reason to do a long interview with a fashion magazine (maybe it is her celebrated collection of lace collars), reaffirmed the most important things we know about her: her partisanship, her elevation of politics over law, and her desire to see as many poor children killed as is feasibly possible.

Speaking about such modest restrictions on abortion as have been enacted over the past several years, Justice Ginsburg lamented that “the impact of all these restrictions is on poor women.” Then she added: “It makes no sense as a national policy to promote birth only among poor people.”

This is not her first time weighing in on the question of what by any intellectually honest standard must be described as eugenics. In an earlier interview, she described the Roe v. Wade decision as being intended to control population growth, “particularly growth in populations that we don't want to have too many of.” [National Review Online, 9/24/14]

NRO's Interpretation Of Ginsburg's Remarks Is Extremely Misleading

Emily Bazelon: “To Imagine That Justice Ginsburg Would Endorse Eugenics As A Motivation For Supporting Legal Abortion, You Have To Be Out To Get Her.” Bazelon, who conducted the original New York Times Magazine interview with Ginsburg in 2009, has expressed her surprise at right-wing media's “confusion” over Ginsburg's comments, since Ginsburg's “life's work [was] advocating for equal rights for women, especially poor women.” Bazelon again interviewed Ginsburg in 2012, and took the chance to clarify the justice's statement:

“Emily, you know that that line, which you quoted accurately, was vastly misinterpreted,” [Ginsburg] 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. [Slate, 10/19/12]

Ginsburg Has Regularly Condemned Unequal Access To Reproductive Services

Ruth Bader Ginsburg In 2010: Without Roe, “The Only Women Who Would Be Truly Affected Are Poor Women.” At the Aspen Institute in 2010, Ginsburg once again noted that it is low-income women who benefit the most from legal protections for reproductive rights. In reference to the audience at Aspen, according to the Daily Beast, she noted that in the absence of Roe, “there won't be any real change for anyone in this audience or any daughters of anyone in this audience”:

On the landmark Roe v. Wade decision, which made a first-trimester abortion a constitutionally protected right, “We will never go back to the way it once was,” Ginsburg declared, to huge applause. “It wasn't all that controversial. It was a 7 to 2 decision with only two dissenters.” If the court were to change its mind, “there won't be any real change for anyone in this audience or any daughters of anyone in this audience,” Ginsburg said. “The only women who would be truly affected are poor women. Because even at the time before Roe, women who wanted abortions could have a safe, legal abortion ... Women could travel from one state to another and didn't have to go to Japan or Cuba ... Whatever the court may do, it's only the poor women who will suffer. When people realize that, maybe they will have a different attitude.” [The Daily Beast, 7/9/10]

Ruth Bader Ginsburg in 2013: If Roe Is Overturned, “It Would Be The Poor Who Wouldn't Have A Choice.” In 2013, the Chicago Tribune reported that in Ginsburg's remarks to the University of Chicago Law School, she noted low-income women are disproportionately hurt by anti-choice law, using the same reference to an irrational national “policy” that she used in her Elle interview. Specifically, Ginsburg argued that if Roe were overturned, "[a]ccess to safe, legal abortions would still be available in those states, though probably more so for women who have the financial means":

“It's about a doctor's freedom to practice his profession as he thinks best,” Ginsburg said. “It wasn't woman-centered. It was physician-centered.”

Roe v. Wade “seemed to stop momentum on the side of change,” Ginsburg told the crowd, saying that abortion-related cases now focus on “restrictions to access, not expanding the rights of women.”

Since that decision, several states either have unenforced abortion bans on their books or laws that would automatically ban abortion if Roe v. Wade is overturned, according to the Guttmacher Institute, a research group that advocates sexual and reproductive health and rights.

But a “number of states would never go back to the way it was” if Roe v. Wade was ever overturned, Ginsburg said.

Access to safe, legal abortions would still be available in those states, though probably more so for women who have the financial means, she said.

“It would be the poor who wouldn't have a choice,” she said, “and I don't think that makes much sense as a matter of policy.” [Chicago Tribune, 5/11/13]

Ruth Bader Ginsburg in 2014: “When The Court Said The Government Doesn't Have To Provide Abortion To Poor Women, It Was A Decision That Is Inexplicable To Me.” At a recent speech before the International Women's Health Coalition, Ginsburg pointed out that the conservative justices have allowed a new wave of “piecemeal” restrictions on reproductive rights to emerge. As reported by Cosmopolitan, for Ginsburg, the effect was “the court saying there's a right to abortion if she can pay for it, but if she's poor, she doesn't have that right”:

The decision in Roe, too, “was as much about a doctor's right to practice medicine” as it was about a woman's right to abortion, she pointed out. “The image was the doctor giving advice to the little woman, not the woman standing alone.”

That shifted somewhat in 1992's Planned Parenthood v. Casey, where the court assessed laws limiting abortion rights, and was a case anti-abortion activists hoped would result in the court overturning Roe. With Casey, Ginsburg said, “the woman's right came into the fore.” But while the Casey decision upheld Roe, it also upheld a series of restrictions on abortion rights, setting up a new era of anti-abortion activism, and a new anti-abortion strategy of making abortions increasingly difficult to get instead of trying to outlaw the procedure wholesale. Today, that piecemeal strategy is working, as abortion regulations have shut down clinics across the country and left the vast majority of American women living in a county with no abortion provider. A federal law passed in the aftermath of Roe bars all federal funds from paying for abortion services for low-income women, and many states block Medicaid from covering abortion for low-income residents who depend on that program for their health care. Those rules have been upheld by the Supreme Court.

“When the court said the government doesn't have to provide abortion to poor women, it was a decision that is inexplicable to me,” Ginsburg said. “It was the court saying there's a right to abortion if she can pay for it, but if she's poor, she doesn't have that right.” [Cosmopolitan, 9/10/14]