Roe vs. Wade, the 1973 Supreme Court decision that made abortion legal in all 50 states, benefited the pro-life cause and harmed the movement in favor of legal abortion, Supreme Court Justice Ruth Bader Ginsburg, who favors legal abortion, said Saturday. Her argument in favor of "judicial restraint," as she called it, could have implications for pending gay marriage cases.
"That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly. ... My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change," she said before a University of Chicago Law School audience, according to Associated Press.
Ginsburg told the audience that she preferred a "judicial restraint" approach to the expansive approach of Roe, which took the decision away from legislative bodies. She would have preferred for the judges to have only struck down the Texas abortion law, rather than decide the issue for all 50 states.
"The court can put its stamp of approval on the side of change and let that change develop in the political process," she explained.
Ginsburg also criticized the decision for couching it in terms of a right to privacy rather than women's rights.
In March, the Supreme Court heard arguments in two cases regarding the definition of marriage. While the Court could use those cases to redefine marriage for all 50 states to include same-sex couples, Ginsburg's comments regarding Roe suggests she would not favor that approach.
With the addition of Delaware last week, same-sex marriage is now legal in 11 states. Thirty-seven states have reinforced the definition of marriage as the union of one man and one woman through a constitutional amendment or a legislative initiative. Additionally, public opinion polls have shown a trend in favor of legalizing same-sex marriage.
It would not "matter that much" if Roe vs. Wade were overturned, Ginsburg added, because abortion legality would be left up to the states and many states "will never go back to the way it was."