Ginsburg on Abortion

The New York Times editorial page of April 3, 2013 cautions against putting too much stock in comments by Justice Ruth Bader Ginsburg “critical of the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. It is not the judgment that was wrong, but “it moved too far, too fast,” she said at Columbia Law School last year, a view she has expressed in various speeches and law review articles.” Ginsburg’s comments are being used by those opposed to marriage equality to caution against a Court ruling that would affirm marriage equality as constitutional right.

The central issue in evaluating the decision by the Court in Roe is not whether or not it was politically wise – “too far, too fast”, but rather was it constitutional correct. If indeed there is a constitutional right of women to decide what to do once pregnant – continue, abort, deliver by what method, be free of shackles if delivering while incarcerated – than the assumption or fear that he public was not ready for the decision is irrelevant – and the notion that this right rather than others gets decided by legislative rather than constitutional court action is not in keeping with a constitutionally based democracy.

Court decisions do not end either discussion or further policy. At the policy level the limits and boundaries of rights are in play between the three branches of government. Abortion has been subject to hundreds of state and federal laws designed to discover the boundaries of the right – parental involvement, husband and partner involvement, waiting periods, ultrasounds, types of procedures, The conversation between the Court and the legislature is rich and contentious.

But for ethicists, particularly feminists, the highly politicized nature of the conversation is a challenge. With two aggressive factions – the poorly named prolifers and prochoicers vehemently defending near absolute turf – no abortions all abortions – and public intellectuals and ethicists enter the arena with caution. The kind of discussions one might have about other complex issues rarely happens. Every ethical article or speech is seized on for political capital. A a href= piece/a by Leslie Cannold  that raises important questions about whether or not the development of artificial wombs would be in women’s interest is a case in point. Cannold thinks not. For abortion rights opponents this is proof all prochoicers actively seek the death of the fetus.

Similarly, a provocative piece in the JME last year extended Peter Singer’s arguments in favor of euthanizing disabled newborns rather than letting them die to all newborns on the basis of a lack of a meaningfully different status between newborns and fetuses. If abortion is justified before birth for any reason, why not after it?  Rarely does the content of an ethics journal make worldwide news, but anything on abortion feeds the beasts.

Generally media only covers abortion when the subject is a piece of legislation; a horror story – Dr. Gosnell delivers viable fetuses alive and then kills them in Philadelphia; or a scientific advance such as abortion by medicine rather than surgery.  Reaction is sought from advocacy groups, rarely from ethicists. If Art Caplan did not regularly pick up news articles and write in on line blogs, good questions would never be asked.

Embedded in Ruth Bader Ginsburg comment on Roe – too fast, too far – are serious questions. Notably did Roe go “too far.”  The public does think so. A short read of public opinion polls make clear that the public wants abortion to be legal, but regulated. Majorities of Americans approve of parental consent, waiting periods, mandated speech designed to discourage abortion, gestational limits. These are all issues where ethicists could shape the kind of questions that should be asked, help people think rather than react. Finding spaces to do that and ethicists ready to write as quickly as Caplan does is the
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