In the 90-minute interview in Ginsburg’s temporary chambers, Ginsburg gave the Times her perspective on Judge Sonia Sotomayor, President Obama’s first high court nomination. She also discussed her views on abortion.
Her comment about her belief that the court had wanted to limit certain populations through abortion came after the interviewer asked Ginsburg: “If you were a lawyer again, what would you want to accomplish as a future feminist agenda?”
“Reproductive choice has to be straightened out,” Ginsburg said. “There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that changed their abortion laws before Roe (to make abortion legal) are not going to change back. So we have a policy that only affects poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.”
Ginsburg discussed her surprise at the outcome of Harris v. McRae, a 1980 decision that upheld the Hyde Amendment, which prohibited the use of Medicaid and other federal funds for abortions.
Here’s a transcript of that portion of the Times' interview:
Q. Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?
Justice Ginsburg: Yes, the ruling about that 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. Which some people felt would risk coercing women into abortions when they didn’t really want them. But when the Court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”
The comment suggested Ginsburg eventually changed her mind and concluded that Roe was not decided with the idea that abortion could be used to limit "growth in populations we don't want to have too many of." But she did not qualify her position that the policy enacted under the case put an unacceptable burden on poor women.
During the interview, the justice also affirmed a position she took on abortion during her Clinton-era confirmation hearing, suggesting the Equal Protection Clause of the 14th Amendment of the U.S. Constitution was a better grounds for justifying abortion on demand than the "right to privacy."
“The basic thing is that the government has no business making that choice for a woman,” Ginsburg told the Times.
In 1993, she told the Senate Judiciary Committee during her confirmation hearing:
“(Y)ou asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.”
The Court legalized abortion under Roe v. Wade based on a “right to privacy” that it found in the 14th Amendment---and not the Equal Protection Clause. In doing so, it said the state had an interest in protecting the unborn child that increased as pregnancy progresses. Ginsburg's position that women have an equal right to abortion as a result of their gender would appear to allow for no state restrictions on abortion.