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Stras on Justice Ginsburg

By Jack M. Balkin

In a post below, David Stras asks whether Justice Ginsburg has associated public funding for abortion with efforts to limit population growth among ?undesirable? groups. Stras acknowledges that Ginsburg is describing an argument rather than endorsing it, but he nonetheless seems to hold her responsible for that argument: he finds Ginsburg?s comments ?odd and even offensive.? Yes, David, I think you are missing something.

Throughout the latter part of her interview in Sunday?s New York Times magazine, Ginsburg emphasizes, and complains, that the law of reproduction has never fully recognized women as autonomous decisionmakers. For example, she mentions her representation of Susan Struck, who was told by the Air Force that she had to have an abortion or be discharged. She agrees with her interviewer that Justice Kennedy?s reference to regret in Gonzales v. Carhart suggested a failure to see women as fully autonomous. And she says that ?[u]nfortunately, there is something of that in Roe. ?[T]he view you get is the tall doctor and the woman who needs him.? In that context, it makes sense that Ginsburg would mention the historical fact that some support for abortion has been based not on recognition for women?s autonomy, but on ?concern about population growth and particularly growth in populations that we don?t want to have too many of.? As Ginsburg notes, such a rationale could be understood as coercing women rather than enabling their autonomous decisions.

Of course, there are multiple values at stake in these debates. Many disagree that women?s autonomy should play the role, or be given the priority, that Ginsburg gives it. But it is no surprise for her to frame reproductive freedom in these terms.

Full post as published by Balkinization on July 14, 2009 (boomark / email).