By Jonathan Bullington
9:43 PM CDT, May 11, 2013
Forty years after the U.S. Supreme Court's landmark Roe v. Wade case legalized abortion, Justice Ruth Bader Ginsburg said the case is not her "ideal picture" for resolving the controversial issue of abortion.
Instead, the landmark decision gave abortion-rights opponents a rallying point that is still used today, Ginsburg — the second female justice ever appointed to the court — told a packed crowd Saturday at the University of Chicago Law School auditorium.
"The court had given the opponents a target to aim at relentlessly," she said.
Ginsburg, who was appointed in 1993 by then-President Bill Clinton, joined university law professor Geoffrey Stone for a sold-out conversation on the 40th anniversary of Roe v. Wade.
Ginsburg, 80, said another case, Struck v. Secretary of Defense, would have been her choice as the first reproductive freedom case heard by the nation's high court.
In that case, U.S. Air Force Cpt. Susan Struck became pregnant in 1970 while serving in Vietnam. Ginsburg, who at the time represented Struck as a lawyer with the American Civil Liberties Union, said the woman had two choices: leave the military or have a legal abortion on base.
Struck told her commanding officer that she arranged to have the child adopted upon birth, but she was still forced to leave Vietnam and was sent back to the U.S., Ginsburg said.
Ginsburg prepared the case for the Supreme Court in 1971, but it was never heard after the Air Force changed its policy on pregnancies and allowed Struck to have the child and remain in the service.
"The idea was: 'Government, stay out of this,' " Ginsburg said. "I wish that would have been the first case. The court would have better understood this is a question of a woman's choice."
In Roe v. Wade, the court should have steered away from a sweeping legalization of abortion, Ginsberg argued. Instead, a ruling should have taken the narrower approach of deeming unconstitutional the Texas law that spawned the case, which only allowed abortions deemed life saving for a woman, she said.
Doing so, Ginsberg said, would have spurred a gradual, state-by-state loosening of abortion restrictions and contributed to the democratic process.
Instead, the court "covered the waterfront" with a decision that — by including the need to consult with a physician — is not really about a woman's right to choose, Ginsburg argued.
"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."
Toward the end of the event, Ginsburg fielded questions from the audience. The sold-out crowd listened attentively throughout the roughly 90-minute conversation, laughing at Ginsburg's occasional quips.
Questions ranged from asking about her thoughts on the role of morality in the legal system to whether the principles of Roe v. Wade applied to laws requiring fathers to pay child support.
Responding to a woman who asked Ginsburg to assess the current state of the women's rights movement, the Supreme Court justice said that while much has been achieved in the advancement of equal gender rights, "we haven't come all the way."
An "unconscious bias" still exists, she said, adding that women should take an interest in helping those who are unable to help themselves.
"The women going to this law school, you will have many opportunities," she said. "What about the girl who is undereducated, drops out of school when she's a teenager and pregnant? Helping raise the level of all women is something I think women should care about."
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