The Problem With the “Minimalist” Critique of Roe

Ruth Bader Ginsburg recently reiterated her support for the Roe-was-a-mistake thesis:

Would today’s abortion battles be as bitter if the Supreme Court had decided Roe v. Wade differently? Last night, in a speech at the anniversary dinner for the International Women’s Health Coalition, Supreme Court Justice Ruth Bader Ginsburg said no.

“I think if the court had gone step-by-step as we did in the gender equality cases, the court and the public would have reacted in a more positive way than it did,” Ginsburg said. “It established a target. Roe v. Wade, that case name is probably the best-known case of the second half of the 20th century. And a movement focused on ending access to abortion for women grew up, flourished, around that one target. Nine unelected judges decided that one issue for the nation.”

Ginsburg, who was first in her class at Columbia Law and led the ACLU’s Women’s Rights Project before becoming a judge, was careful to say she thought the heart of the ruling in Roe was correct — that the Texas law, which made all abortions illegal except those to save the pregnant woman’s life, was unconstitutional. But, she said, the court’s decision to issue a sweeping judgment establishing the right to abortion in all 50 states was a strategically poor one and led to modern-day political battles over reproductive rights.

“There might have been a backlash in any case,” Ginsburg said. “But I think [because of Roe] it took on steam.”

Longtime readers will know that I’ve critizied this theory in both shorter form and interminable form. But I’d like to focus in particular on the particular problem with the argument that the Court should have just said the Texas law was unconstitutional and said nothing more in order to minimize backlash. (Cass Sunstein made the same argument in Balkin’s Roe book.) The obvious problem with this is that a “minimalist” Roe is impossible. The Texas statute might have been substantively extreme but more than 30 states had an essentially identical statute which would also have been struck down by a “minimalist” opinion. It’s true that a “minimalist” opinion would have given more room for these states to pass new abortion regulations. But 1)political battles over abortion in many states followed by litigation…does not sound like a formula for minimizing political conflict to me, and 2)unless the Court was to consistently intervene not only would this approach lead to at least as much anti-abortion right mobilization, but it would also have protected reproductive freedom less effectively. Ginsburg’s proposed alternative is all downside and no upside.

This related observation is important too:

The decision in Roe, too, “was as much about a doctor’s right to practice medicine” as it was about a woman’s right to abortion, she pointed out. “The image was the doctor giving advice to the little woman, not the woman standing alone.”

This is true as far as it goes — Casey does a much better job of linking abortion rights to gender equality than Roe does. To me, the lesson is that the effect of legal rhetoric (as opposed to the bottom-line judgments of courts) is massively overrated. As Filipovic points out, whatever their grounding Roe protected reproductive rights very effectively and Casey didn’t. In this context, what the Court does is just much more important than how it justifies its actions.