Robbins: Why RBG worried that Roe might not survive
The Notorious RBG was a fighter. Despite her tiny physical stature, Ruth Bader Ginsburg was a tenacious advocate for human rights, a fearless champion for women, and for what was set in stone into the West Pediment above the entrance to the United States Supreme Court — “Equal Justice Under Law.”
Maybe, just maybe, because she was the little guy — female and Jewish — in a world overbrimming with discrimination, she was the advocate of the little guy and a bare-fisted brawler who aimed to level an uneven playing field.
She was also, by all accounts, a worrier. Perhaps that’s what drove her inexhaustibility.
Before going further, let’s define our terms. Roe, as mentioned in the title, refers to the landmark 1973 case of Roe v. Wade, recently upended by the Trump-packed United States Supreme Court. For those of you not among the legal cognoscenti, Roe — the name at least — was sort of a legal placeholder.
Often when a litigant’s name is not yet known or there is a compelling reason to preserve anonymity, “Doe” or “Roe” is substitute in the legal pleadings for the person’s true name. In the case of Roe, the true name of “Jane Roe” was Norma Leah Nelson McCorvey who died in 2017. “Wade” was Henry Menasaco Wade, the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law that prohibited abortion, except to save a woman’s life. Wade died in 2001. Of at least passing interest — besides his place in legal history in the abortion debate, before the Roe case came along, Wade participated in the prosecution of Jack Ruby for the killing of Lee Harvey Oswald, John Kennedy’s assassin.
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What Roe was all about was the right to an abortion. In 1969, McCorvey, then in her early 20s, sought to terminate an unwanted pregnancy. She had previously given birth twice and, owing to her difficult, impoverished circumstances, had given up both children for adoption. After trying unsuccessfully to obtain an illegal abortion, McCorvey took on Texas.
Linda Coffee and Sarah Weddington were a pair of Texas attorneys who were interested in challenging anti-abortion laws. In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Wade, the district attorney in the county where McCorvey lived.
To the surprise of at least some, in June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. The court’s decision notwithstanding, Wade declared that he’d continue to prosecute doctors who performed abortions. The case was appealed to the U.S. Supreme Court. Meanwhile, McCorvey gave birth and put the child up for adoption.
Up to the Supremes it went. The case was argued before the court in mid-December, 1971, and re-argued in mid-October of the next year. On Jan 22, 1973, the Supreme Court, in a 7-2 decision, struck down the Texas law, effectively legalizing, nationwide, a woman’s right to choose.
For the past nearly 50 years, Roe has been the law of the land. That is, until June of this year, when in a 5-4 decision, in the case of Dobbs v. Jackson Women’s Health Organization, Roe was overturned. Unless, you’ve been a Rip Van Winkle, slumbering through the halcyon days of summer, you know the controversy Dobbs has stirred, with opponents of Roe dancing in the streets, and determined advocates dug in and marching in the same streets, demanding restoration of what they see as their long battle for equal women’s rights.
Roe was among the things that RBG worried about.
Little known outside of certain legal circles, Bader Ginsburg, who died in September, 2020, was a frequent critic of Roe, especially its framing and the speed in which it was pushed through. In an oft-quoted speech she gave at New York University in 1992, Bader Ginsburg noted how Roe was an example of how “Doctrinal limbs too swiftly shaped … may prove unstable.”
Specifically, what Bader Ginsburg was arguing was that was Roe’s base underpinnings, that the right to abortion was founded on a woman’s right to privacy with her doctor, rather than — as RBG believed — its denial being based upon a violation of equal protection as guaranteed by the Constitution. Securing a woman’s right to choose under the equal protection clause of the 14th Amendment rather than that amendment’s right to privacy, RBG believed, would have been the wiser and more prudent course.
Having latched on to fragile grounds, RBG fretted that the decision might one day be vulnerable to conservative attack, a fear which proved ultimately prescient.
“Roe,” Bader Ginsburg told the University of Chicago Law School in May 2013, “isn’t really about the woman’s choice, is it?” It’s about the doctor’s freedom to practice … it wasn’t woman-centered, it was physician-centered.” And that, RBG believed, left frayed edges which might one day lead to its unraveling.
Had Roe, Bader Ginsburg observed, focused on striking down the Texas law that “intolerably shackled a woman’s autonomy,” it could have better weathered the storms of challenge. Now, it seems, the ship of that lost opportunity has sailed.
The moral, in RBG’s keen eyes, was not — in Roe or other matters — to rush to the result one wishes to effect. Instead, focused and intentional deliberation and reasoning are key. And that, perhaps, is what one day will make Dobbs itself subject to assault. As the tides of law and history ebb and swell, time alone will tell.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. He may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at Barnes and Noble & Amazon.com.
