What if a Woman Had Been on the Bench Deciding Roe?
It has been forty years since the Roe v. Wade decision was handed down by the Supreme Court. Although the ruling was meant to make abortion legal in all 50 states, a number of subsequent court decisions have chipped away at the legal right to an abortion leaving it in many ways accessible and legal in name only, depending upon a number of factors such as what state a person lives in or how much money she has.
Current Supreme Court Justice Ruth Bader Ginsberg hasn’t been one to pull punches when it comes to discussing the legal dismantling of the of the protections surrounding the right to chose to terminate a pregnancy, nor what she considers to have been the 1973 court’s mishandling of the decision itself. Now, in a recent interview with a talk show called “The Takeaway,” the justice takes on another interesting hypothetical: what if there had been a woman on the court that decided the nation’s original abortion case?
John Hockenberry: You’ve delivered very famous critiques of the Roe v. Wade decision. In a slightly narrower question, I wonder if you feel that a woman on that Court would have resisted making a decision so clinical in the way that it described first trimester, second trimester, third trimester, that sort of thing.
Ruth Bader Ginsburg: There was a later case called Casey in which Justice O’Connor did participate in this kind of very different tone. It centered on the woman, not on the doctor-patient relationship, and it isn’t divided into trimesters. So I think looking back from that decision we can say yes, if Justice O’Connor had been on that Court maybe she would have influenced the way the decision was explained.
It’s interesting that Ginsburg notes that the case in which a woman did participate, the resulting decision surrounded the right of the woman terminating the pregnancy more so that the decision made in Roe, which in essence was about making it legal for a medical professional to perform an abortion on a patient rather than a direct statement that the pregnant person has the right to terminate.
If Roe had originally been focused more on the right of the woman than the legality of the procedure itself, we would be looking at a very different landscape when it comes to the type of abortion restrictions being proposed and passed in state legislatures. By creating the idea of abortion as dangerous or harmful to women, anti-choice lawmakers have been able to dramatically reduce access by mandating waiting periods and ultrasounds, or by eliminating access to early termination via telemed bans or bans on off-label drug use, despite both being medical best practices for abortion.
More disturbing, however, is the loophole that has been left open by making abortion only legal when done by a doctor, criminalizing any pregnant person who endeavors to find her own means to terminate a pregnancy when she is unable to access a legal abortion. Despite the legality of the act of abortion, we are increasingly seeing women who have been charged for ending a pregnancy on her own, out of suspicion of ending a pregnancy on her own, or even worse, just for not giving birth to a live child and seeking out medical help afterwards.
Even the current court precedent doesn’t leave much to feel positive about. When Jennie Linn McCormack, an Idaho woman accused of “unlawful abortion,” fought a charge meant to be used on non-medical professionals who terminate a pregnancy, the courts ruled that a pregnant person couldn’t be charged for inducing her own abortion. It was not because she has a right to an abortion, however, as much as that it would put “an undue burden on women seeking abortions by requiring them to police their provider’s compliance with Idaho’s regulations.”
In other words, it’s still about the relationship between the doctor and patient, not the right of the woman to decide whether or not she wants to give birth.
That so much of Roe revolves around the abortion provider’s right to terminate a pregnancy without fearing legal recourse becomes that much more dangerous as we see access to medications that could cause an abortion greatly increasing, and access to real medical professionals who can safely and legally provide the same dwindling rapidly. If the pace of both continue, there will be a many more instances for those who support reproductive rights to mourn for a woman-centric Roe we never got to see in reality.