Abortion brawl draws Ruth Bader Ginsburg's legacy on Roe v. Wade into the spotlight

WASHINGTON – In his draft opinion in the Supreme Court’s blockbuster abortion case, Associate Justice Samuel Alito turned to an unexpected inspiration to bolster his argument for overturning Roe v. Wade: the late Ruth Bader Ginsburg.

As the nation's preeminent women's rights lawyer and an associate justice who became the leader of the Supreme Court's liberal wing, Ginsburg had reservations about the legal reasoning in Roe, the 1973 decision that established a constitutional right to abortion. She also thought it galvanized the anti-abortion movement.

It's understandable why Alito, among the court’s most conservative justices, would want to call attention to the contradiction.

"Roe may have 'halted a political process,' 'prolonged divisiveness,' and 'deferred stable settlement of the issue'" of abortion, Alito wrote in the draft, quoting from a lecture Ginsburg delivered at New York University months before President Bill Clinton nominated her to the Supreme Court.

But experts say Ginsburg's criticism of Roe was only part of the story. The second woman to serve on the Supreme Court after Associate Justice Sandra Day O’Connor, Ginsburg was an ardent supporter of the right to abortion. She just thought that right should have been grounded in a different part of the Constitution.

Guns, climate: The Supreme Court is juggling major controversies besides abortion

History: Justice Alito's history of abortion in leaked draft opinion? It's debatable.

Precedent: A look at past Supreme Court decisions that have been overturned

"The portrayal of her as an opponent of constitutional protections for abortion reflected in Roe is a bit of a cheat," said David Gans with the liberal Constitutional Accountability Center. "She was critical of the court's reasoning but not the bottom-line conclusion that the right to abortion is guaranteed by the Constitution."

The Supreme Court is expected to rule next month in a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy. The ban contravenes the court’s precedent in Roe and a 1992 decision that permitted people to obtain an abortion up until the point a fetus can survive outside the womb, roughly 23 to 24 weeks into a pregnancy.

Though she died before the court agreed to hear the Mississippi case, Ginsburg's legacy – and her thoughts on Roe – have figured prominently from the beginning. And both sides have sought to claim her legacy as supporting their position.

Ginsburg died in 2020 in what would have been her 28th year on the high court. Her death allowed President Donald Trump to nominate Associate Justice Amy Coney Barrett, giving conservatives a 6-3 advantage on the court for the first time in decades.

The fear of a repeat – and a seventh conservative justice – explains why some progressives pushed for Associate Justice Stephen Breyer, the court’s senior-most liberal, to step down last year. Breyer, 83, announced his retirement in January, paving the way for Democrats to select and confirm his replacement.

The court's decision to wade back into abortion in the Mississippi case, Dobbs v. Jackson Women's Health Organization, captured national attention and inspired protests before Alito’s draft was leaked to Politico in early May. The disclosure thrust reproductive rights into the center of a renewed national debate.

Crossover: How a Supreme Court case about pig farms could muddy abortion debate

Who leaked: Speculation swirls as Supreme Court launches probe into leaked draft 

Poll: Supreme Court approval nosedives after leak of draft abortion opinion 

In Roe, a 7-2 majority of the court said that the 14th Amendment's guarantee of liberty included a right to privacy that protects a person's decision to end a pregnancy. The court reiterated that holding 19 years later in Planned Parenthood v. Casey.

Ginsburg, a driving force for gender equality as an attorney, believed the court should have struck down abortion restrictions because they violate the Constitution’s promise of equal protection. Abortion restrictions, she argued, discriminated against women because they deprived them of their autonomy and "equal citizenship stature."

Neil Siegel, a professor of law and political science at Duke University who clerked for Ginsburg in the high court's 2003-2004 term, said that she didn’t view the debate as a mutually exclusive choice. Instead, constitutional principles of liberty and equality supported each other in her view, according to Siegel.

"She did criticize Roe for its lack of incrementalism, for going too far, too fast," Siegel said. "But, you know, it's exactly the lack of incrementalism that the Dobbs draft is guilty of." If the draft becomes the court's majority opinion, Siegel said, it "is exactly the opposite of the kind of incrementalism that she preached as an advocate, and that liberals criticized her for."

In the same 1992 address Alito cited, Ginsburg noted an Air Force captain she represented before the Supreme Court in 1972. At the time, the service required pregnant officers to get an abortion or face discharge. Ginsburg argued that the policy was discriminatory because it placed the burden of child-rearing on women.

The Air Force changed its policy before the court ruled.

Had they followed through rather than dismissing the case, Ginsburg wondered, might the justices have "comprehended an argument, or at least glimpsed a reality, it later resisted – that disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination on the basis of sex?"

Ginsburg’s equal protection argument resurfaced in Dobbs before oral arguments late last year. The Biden administration was among several parties that tried to convince the court in legal briefs that state abortion bans are a "profound intrusion" on a woman’s "autonomy," "bodily integrity," and "equal standing in society."

Alito brushed aside those arguments in his draft, asserting prior cases already have established that the restrictions are not sex-based.

"Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents," Alito wrote. "As the court has stated, the 'goal of preventing abortion' does not constitute 'invidiously discriminatory animus against women.'"

Ginsburg disagreed. Women's ability to "realize their full potential" as citizens and in the workforce "is intimately connected to 'their ability to control their reproductive lives,'" Ginsburg wrote in a 2007 dissent.

"Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature," she added.

The distinction between Ginsburg's legal reasoning and what the court embraced in Roe may not have much practical significance. If a majority of the justices are prepared to abandon the central premise of Roe to overrule it, then it seems unlikely those same justices would reach for a new constitutional rationale to save it.

"I think that the equal protection arguments that you see developed in scholarship wouldn't get off the ground," said Sherif Girgis, a former Alito clerk and professor at Notre Dame Law School.

"It makes sense to develop in a law review article," he said, "but it might look too academic in a judicial opinion."

This article originally appeared on USA TODAY: Roe v. Wade: Ruth Bader Ginsburg's legacy invoked in abortion fight