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Wednesday, Apr 3, 2013 12:53 PM UTC

New York Times to Ruth Bader Ginsburg: Roe was not “too far, too fast”

The Times editorial board takes issue with the justice's remarks, and the equal rights opponents exploiting them

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Topics: Ruth Bader Ginsburg, The Supreme Court, DoMA, prop 8, Gay Marriage, Abortion, Roe v. Wade, , ,

New York Times to Ruth Bader Ginsburg: Roe was not

The New York Times editorial board called United States Supreme Court Justice Ruth Bader Ginsburg’s comment that Roe v. Wade “moved too far, too fast” a misreading of the “ legal and political landscape at the time of the Roe decision” in a Wednesday editorial. The board also denounced opponents of marriage equality for exploiting Ginsburg’s words as a cautionary tale for the high court’s rulings on the Defense of Marriage Act and Proposition 8.

The court decision in Roe did not “short-circuit” a political process at the state level to legalize abortion, nor did it “get too far ahead of public opinion.” Instead, the Times argues (emphasis mine):

The real story, as explained by Linda Greenhouse, a former New York Times reporter who now teaches at Yale Law School, and Reva Siegel, a professor there, is that political conflict over abortion was escalating before the Roe decision, and that state progress on decriminalization had reached a standstill in the face of opposition from the Roman Catholic Church.

In 1970, a measure legalizing abortion in New York cleared the State Assembly by just a single vote. Only a veto by the state’s Republican governor, Nelson Rockefeller, blocked its partial repeal two years later. Had the Supreme Court waited for the states to move, women in a large portion of the country would still be denied the fundamental right to make their own childbearing decisions.

The claim that the court invited a backlash by getting too far ahead of public opinion does not hold. At the time of the ruling, a Gallup poll showed a substantial majority of Americans favored letting the abortion decision be made “solely by a woman and her physician,” with more Republicans than Democrats in favor. In fact, at the confirmation hearing for Justice John Paul Stevens in 1975, not a single question about Roe v. Wade was posed.

Going on to cite the toxicity of the abortion debate even in the pre-Roe era, the Times calls the current political climate around women’s reproductive rights something that was “cultivated and nourished” by Republican strategiests — not the 1973 Supreme Court ruling.

Returning to the issue of extending equal rights and equal protection under the law to gay couples and their families, the Times concludes:

But there is a danger now that overblown fears of a backlash based on a false reading of politics before and after Roe v. Wade could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.

The short version? Then, as now, fear of anger from opposition groups or further polarization is no reason to deny people their rights.

Katie Mcdonough

Katie McDonough is an assistant editor for Salon, focusing on lifestyle. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com. More Katie Mcdonough.

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