What RBG Got Wrong about the Abortion Debate and the Courts

by Felicia Kornbluh

Felicia Kornbluh is professor of history at the University of Vermont and author of How to Fight a War on Women (Grove Atlantic Press, forthcoming). She was a signatory to a amicus brief in Dobbs v. Jackson Women’s Health Organization whose primary author was Professor Mary Ziegler, and which contained some of the ideas included here.

On Wednesday, the Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, in which Mississippi asks the justices to eliminate the constitutional protection for the right to have an abortion. (I am a signatory to an amicus brief in the case).

The state’s brief calls the court’s major abortion precedents, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) “egregiously wrong” and “hopelessly unworkable.” It charges that both harmed the United States and the court’s legitimacy and calls for the justices to overturn them. This would return abortion regulation to the states, to be sorted out by democratically elected legislatures.

One piece of the state’s argument may particularly grab the justices’ attention. Mississippi claims that Roe unnecessarily inflamed an issue that might otherwise be less polarizing. It asserts that only by undoing this mistake can the court break “the national fever on abortion.”

The state cites an unlikely authority for this claim: Justice Ruth Bader Ginsburg, a longtime champion of women’s rights. While Ginsburg, unlike Mississippi, never wanted to see the Supreme Court completely withdraw constitutional protection for abortion rights, she suggested in 1984, and again in 1992, that the court should have given state legislatures limited guidance and allowed them to work out new policies — as, she claimed, they were doing before Roe interrupted their work. Such “modest measures,” she wrote, instead of the sweeping policy laid out in Roe, might have prevented the rancor surrounding abortion rights that has been so much a part of our post-Roe politics.

But the truth is that Ginsburg misread the history of political struggle over abortion.

From the moment in the mid-1960s when state legislatures started to discuss abortion policy, it was fiercely contested. This past offers no promise that, if the court returned the issue to the states, the renewed debates would be anything but fraught and rancorous.

Read entire article at Made By History at the Washington Post