Ruth Bader Ginsburg criticized Roe v Wade in 1985. She must have had a time machine.

In 1985 Ruth Bader Ginsburg, then a Circuit Judge on the US Court of Appeals for the District of Columbia, wrote a paper for the North Carolina Law Review: Some Thoughts on Autonomy and Equality in Relation to Roe v Wade. It wasn’t the outcome that disturbed her; it was the way the opinion was written.

“Inevitably,” she wrote, “the shape of the law on gender based classification and reproductive autonomy indicates and influences the opportunity women will have to participate as men’s full partners in the nation’s social, political and economic life”. This is the strongest possible case to made for a woman’s right to choose to have an abortion. If you consider any fundamental right — the right to vote, the right to equal pay; the right of black and brown people to be treated with the same respect and dignity as white people; the right of LGBTQ people to wed and to be treated with the same respect and dignity as cis gender people — the right is designed to ensure equality of treatment between two or more groups.

Not, however, the right to choose to have an abortion, as only one gender can choose to have one. Therefore, RBG is saying, make the right about women being able to be a full partner with men to participate in society, which is inhibited if she is carrying a baby to term, and then has to nurse it, and not even be able to work if she cannot afford child care. Classification by gender makes access to abortion a 14th amendment equal protection case.

How unequal were things for women in the United States? Until 1971, she notes, “without offense to the Constitution, for example, women could be barred from occupations ranging from lawyer to bartender.”

However, in the 1970s a series of cases that came before SCOTUS found these inequalities unconstitutional. There was one area, however, that SCOTUS failed to address: although they had stuck down laws against married people, and then single people, having access to contraception [ or even literature about contraception!] they veered away from pregnancy. School teachers sued because they were forced o terminate or take leave months before their due date. SCOTUS struck the law down, but under equal protection reasoning.

But when SCOTUS addressed reproductive autonomy they opened the door to something horrible. Whether it was because the seven justices who affirmed Roe were all men, or due to sheer stupidity, “the Court”, RBG stated, “ventured too far in the change it ordered and presented an incomplete justification for its action.”

By 1973 abortion law was in a state of change across the nation” RBG noted. “There was a distinct trend in the states”, noted SCOTUS in Roe,” toward liberalization of abortion statutes.. The American Law Institute Model Penal Code included permissible grounds for abortion at any stage of pregnancy and included for the sake of the woman’s mental, as well as physical, and mental, health”.

But Roe set a terrible precedent when it said that a woman, guided by the medical judgment of her physician, [italics mine] had a fundamental right to abort a pregnancy. And although Roe and a separate case, Doe v Bolton , called into question the criminal abortion statutes in every state, the right to choose was altogether less than fundamental given the need of a physician.

Roe announced a trimester approach, the same approach that is going to be heard next year in Dobbs. Archibald Cox, the former special prosecutor in the Watergate case, wrote in The Role the Supreme Court and the American Government [and quoted by RBG]

My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of the decision by articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment based upon the evidence currently available from the medical, physical, and social sciences. ..The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of childbirth and abortion or new advances in providing for the existence of a fetus.

RBG noted that ten years after Roe, Justice O’Connor [ a woman!] described the trimester approach as “on a collision course with itself”. RBG explains:

Advances in medical technology would continue to move forward[sic] the point at which regulation could be justified as protective of a woman’s health, and to move backward [sic] the point of viability, when the state could proscribe abortions unnecessary to preserve the patient’s life or health. The approach, O’Connor thought, impelled legislatures to remain au courtant with changing medical practices and call upon courts not as jurist ‘applying neutral principles’ but as ‘science review boards. ‘

RBG goes on to note that “in place of the trend toward liberalizatinon of abortion statutes noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements.

Which brings us to 2021,and Dobbs. Dobbs limit to the 15th week isn’t such a huge issue on its face, given that most abortions occur within the first trimester. No, the fear is that it’s another step toward the constitutionality of a heartbeat bill.

Texas Governor Greg Abbott [you know, Texas, the plaintiff in Roe]just signed a fetal heartbeat law, before many women even know they are pregnant. “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” Abbott said. “In Texas, we work to save those lives. And that’s exactly what the Texas legislature did this session.” Abortion providers must check for a heartbeat before the procedure, and that includes prescribing mifepristone [ which pharmacists in many states do not have to provide even with a valid prescription if they have a “moral objection”].

I can just see Amazon selling out of HelloWave BellyBuds Belly-Bump headphones and Prenatal Bellyphone speakers for the low, low price of $39.99 [a 20% saving]. 2,422 ratings.

That is, unless you’re poor, in which case you are AGAF as always.