Ruth Bader Ginsburg, abortion, and the future of gay marriage

Anyone holding out hope that the Supreme Court is going to issue a sweeping decision to legalize gay marriage inroughout all 50 states has a new reason to temper their expectations. Not even the court's most liberal member appears to be all that eager to thrust the institution into another cultural fight. It's not so much because she does not believe in advancing rights, but rather because she appears to have concluded that judicial modesty is, in some circumstances, the best way to advance those rights.

The justice I am talking about is Ruth Bader Ginsburg. In a talk at the University of Chicago on the 40th anniversary of the holding in Roe v. Wade, Justice Ginsberg reflected upon the scope of the Roe holding, and not in a way that suggests that she would do it the same way if she had it to do over again. "Roe became a symbol for the right to life movement. They have an annual parade now every year on the day in January when it was decided."

As her statement this weekend suggests (and as Supreme Court watchers know, you can never read too much into what is said at oral argument or in public remarks), Justice Ginsburg appears to believe that Roe caused a cultural backlash against a woman's right to choose that would never have occurred had the court not intervened so aggressively. Instead, Justice Ginsburg appears to have concluded, like many others of all sorts of ideological makeups who have studied the case, that had the court been more modest, a societal consensus would have emerged and the same rights would have come to be enshrined in the laws of each state through more democratic means.

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That Justice Ginsburg feels this way will not shock court-watchers. She has long argued that Roe was decided on the wrong grounds. (Harry Blackman's opinion in Roe primarily based the right to abortion in the right of the doctor to care for his patient without interference from the government, not in the right of the woman to make the decision). And this is merely the latest occasion in which the court's (arguably, at least) most liberal member/lifetime crusader for women's rights has suggested that the cause of women's rights would have been better served had the court merely struck down the Texas statute as too restrictive and not gone on to declare categorically that the Constitution protects the right to abortion.

There are reasons to question whether this is in fact the case. That the nation was slowly evolving on the abortion issue does not mean that women in individual states would have gained access to legal abortions in an acceptable amount of time had the Supreme Court not intervened. But at the same time, it is difficult to argue with the fact that the when the Supreme Court handed down Roe, it abruptly cut off an ongoing debate in a way that made those who remained uncomfortable or hostile to the idea of legal abortion feel that they had been disenfranchised. Indeed, you can question whether abortion rights would have ever gained wide acceptance in this country without Roe, but you cannot quibble with the obvious reality that the anti-abortion movement was a heck of a lot stronger post-Roe than it was before the Court intervened.

Which brings us to the gay marriage cases. When Justice Ginsburg spoke this Saturday, she did so having already cast her preliminary vote in the gay marriage cases. She knows who is writing which opinions for each side, and she may already have seen drafts. Of course, justices can change their votes. But many of the same concerns that Justice Ginsburg says she wishes she had thought more about when dealing with Roe seem to bear upon the issue of gay marriage with equal force.

Over the past two years, we have seen gay marriage advocates make huge strides throughout the country. We have also seen enormous shifts in the way people think about gay marriage. Those shifts are occurring organically. Broad-based acceptance of gay rights seems more a question of when, not if. For that reason, the Supreme Court is likely to be loathe to intervene in any hugely significant way. Instead, the debate, and the evolution of American attitudes on marriage equality and gay rights generally, will continue to play out at the grassroots level. That will disappoint some, but given the gains being made toward equality, perhaps punting is the best thing that could happen for the gay rights movement at this point in history.

Today's column is dedicated to the memory of Peter Worthington, who died early this Monday morning in Toronto. To the end, Pete lived his life with a vigor that we should all aspire to match. He will be missed.