Ginsburg Questions 1973 Abortion Ruling's Timing

Published February 10, 2012 9:54PM (EST)

NEW YORK (AP) — Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide.

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas — where the Roe case originated.

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."

A similar dynamic is now unfolding in regard to same-sex marriage, which is legal in six states, could soon be legal in a few more, but remains outlawed in most states. Legal advocates on both sides of the issue wonder if the Supreme Court will want to have a say on the matter relatively soon, or let the state-by-state process evolve further. Ginsburg did not comment on that issue.

On another topic at the symposium, Ginsburg said countries in the Middle East and elsewhere contemplating the adoption of new constitutions have more up-to-date models to consider, in addition to the U.S. Constitution.

"If you're writing a constitution today, are you going to look back at an 18th century model?" she asked, before citing such newer documents as South Africa's 1996 constitution and Canada's 1982 Charter of Rights and Freedoms.

Ginsburg noted that most modern-era constitutions have guarantees of gender equality comparable to the Equal Rights Amendment that has been proposed — but never ratified — for the U.S. Constitution.

"An Equal Rights Amendment is not a cure-all," Ginsburg said. "It takes people who care about implementing the rights to see that it becomes real, and not just on paper."

Much of the symposium was devoted to Ginsburg's decades of work promoting the equality of women in the legal profession and in American society overall.

She recalled entering Harvard Law School in 1954 as one of nine women in a class of several hundred.

"You felt that all eyes were on you and if you gave a wrong answer, you were failing not simply for yourself but for all women," she said.

After a stint teaching law at Rutgers University, she joined the Columbia law faculty in 1972 and taught there until 1980, when she was appointed by President Jimmy Carter to the U.S. Court of Appeals in Washington. While at Columbia, she expanded the school's offerings of courses on women's rights and sex discrimination, and also became chief litigator for the American Civil Liberties Union's Women's Rights Project.

She recounted many of the gender-equality cases that arose during her career — among them writing the majority opinion in the Supreme Court's 1996 ruling striking down the male-only admissions policy at Virginia Military Institute.

Asked to offer advice to young women starting law careers, she said the biggest challenge is trying to balance work life and family life in a profession that traditionally hasn't embraced that balance.

"That's changing, but not swiftly," Ginsburg said. "It takes people who care."

She offered one last suggestion, when asked how today's young lawyers should be battling against injustice.

"Don't take no for answer," she said. "But also, don't react in anger ... Regard every encounter as an opportunity to teach someone."

By Salon Staff

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