Justice Ruth Bader Ginsburg and Geoffrey Stone, "Roe at 40"
This event was recorded on May 11, 2013 and was cosponsored by The University of Chicago Law School, the Center for the Study of Gender and Sexuality at the University of Chicago, and the University of Chicago Institute of Politics.
Transcript
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Schill:
Those of you who don't know me, my name is Michael Schill and I'm Dean of the University of Chicago Law School and I'm thrilled to welcome you here for today's event, featuring a conversation between Justice Ruth Bader Ginsburg and professor Geoffrey Stone on "Roe vs Wade at 40." Now this event is cosponsored by the Institute of Politics, the Center on the Study of Gender and Sexuality, and the University of Chicago Law School. Additional support for the Center on the Study of Gender and Sexuality's programming on Roe vs Wade was also provided by the Social Sciences Division. Now we're always extremely honored when a Supreme Court justice visits us and we're especially so when it is someone like Justice Ginsburg who is a long time friend of so many in our community and has so many ties to our university and to our city. Her son James, we are pleased to have with us this afternoon, is a Chicagoan who attended our law school before starting his highly acclaimed classical music record label.
Her late husband Marty was a greatly influential legal academic who at one time spent time with us as a visiting professor. And one of her former clerks, Aziz Huq, is now a member of the Law School faculty. And, of course, she's a longtime friend and colleague of the other speaker for today, Geoff Stone. Now, Geoff of course is well known here on campus, but I'll provide a short introduction for him anyway. Geoff Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. After graduating from our law school in 1971, he was a law clerk to Justice William J. Brennan on the United States Supreme Court in 1972, '73. That date will seem particularly relevant or should seem particularly relevant today. That is the year that Roe vs Wade was decided. He joined our faculty in 1973. He has served both as the dean of this law school and as provost of our university. Most important for our purposes today, he is one of the foremost authorities in the world on American constitutional law.
He's the author of more than a dozen books, including the preeminent book on Constitutional Law and the award winning book, Perilous Times: Free Speech in Wartime -- From the Sedition Act of 1798 to the War on Terrorism. Now, Justice Ginsburg is one of the few people in the world who needs less of an introduction than Geoff does in this crowd, but I suspect that most of you know her best through her work that she has done since being appointed to the United States Supreme Court by President Clinton in 1993. Well, I have no intention of slighting those 20 years of brilliant service on our nation's highest court, I thought it more relevant to our topic today to speak of her life as a litigator and is what the ACLU calls a pioneer for gender equality. Now, after attending Harvard Law School and graduate, I'm sorry, Har--. Yes, Harvard Law School and then graduating from Columbia Law School in 1959, Justice Ginsburg experienced firsthand some of the gender discrimination common at that time.
She was one of only nine women in her Harvard class, and she and her classmates were asked by the dean why they were occupying seats that could have been occupied by men. Despite her tying for first in her class and having stellar recommendations from faculty, Justice Frankfurter turned her down for a clerkship because he didn't want a female clerk and no law firm would hire her. She instead began her career as a clerk on the southern district of New York. Then moved into academia where she co-founded the influential journal, the Women's Rights Law Reporter, the oldest legal periodical in the United States focusing solely on the legal rights of women. While teaching at Rutgers, she discovered that her pay was lower than that of her male colleagues. So guess what she did? She joined a successful equal pay campaign with other female academics. Her personal experiences and her academic interest in the legal rights of women turned into a career as a litigator defending them.
In 1972, she founded the Women's Civil Rights Project at the ACLU and also join the Harvard Law. I'm sorry. The Columbia Law School's faculty as their first tenured faculty member then joined the ACLU also as general counsel. She already had experienced litigating gender equality matters. Having written the brief in Reed v. Reed, which overturned an Idaho law granting men preference as a state administrators and extended the Constitution's equal protection guarantee to women for the time. Justice Ginsburg then argued her first case before the United States Supreme Court, Frontiero vs Richardson, pushing the existing law even further and advocating for strict scrutiny to be applied to gender discrimination just as it is racial discrimination. Four justices agreed with her and through a series of decisions after Frontiero, the court established the standard of intermediate scrutiny for constitutional issues of gender.
By all accounts and unsurprisingly for anyone who has seen her in action, her argument in Frontiero was brilliant. She spoke entirely from memory, did not consult a single note and the justices apparently were so mesa-- mesmerized that they didn't ask her any questions. In the Frontiero case, she used one of her great innovations in litigating gender discrimination cases, a male plaintiff, to show that sex-based distinctions harm us all. She continued this tactic throughout her career arguing against the denial of social security benefits to widowed fathers that were given to widowed mothers and against laws that denied men the same opportunity as women to care for their children. During her entire time at the ACLU. She made it her mission to get others to see what she saw so clearly: that the Constitution's equal protection and due process clause covered issues of gender as much as they covered issues of race, and that they could be used to advance the cause of fully quality for women. The Roe vs Wade decision is part and parcel of that cause in that time period. I'm sure you all know what a privilege it is for us to hear from two people who not only had a front row seat for and substantial involvement in that critical decision, but whose careers ever since have been dedicated at the highest levels to the core principles of constitutional law. Please join me in welcoming Justice Ruth Bader Ginsburg and professor Geoff Stone
Audience:
[applause]
Stone:
So I'm delighted to welcome Justice Ginsburg back to the Law School. Um, the 1972, '73 term with the Supreme Court, uh, as Dean Schill suggested was one that, um, focused in important ways upon the issues of women and the constitution. And before turning to Roe v Wade, I think because Dean Schill spoke a bit about Frontiero, it would be useful to start our conversation there. Um, a bit of background is, uh, until 1971, the Supreme Court had never held any law that discriminated against women to violate the Equal Protection Clause of the Constitution. It had upheld laws that basically said women, um, could not be bartenders, could not be lawyers, didn't have to serve on juries. Uh, its basic view was that there was any rational justification for a law discriminating against women, uh, the law was permissible and rational was defined in a very deferential manner. Um, in 1971 in the case that that Dean Schill mentioned, Reed vs Reed, uh, the car-- Court did something surprising. Um, it held unconstitutional a law discriminating against women. Uh, and it did show on the ground that the law was irrational and this was a kind of anomalous decision because under the normal standards of what the Court had always meant by rational under the Equal Protection Clause, the law in Reed v. Reed was rational.
But nonetheless, the Court had clearly played a little fast and loose with its doctrine and it held, the law was unconstitutional. Um, two years later during the '72, '73 term, the court heard argument by Justice Ginsburg, then judge, uh, then, uh, Mrs. Ginsburg, um, in Frontiero v. Richardson. I was, by the way at the oral argument as a law clerk. So I can attest to, uh, Dean Schill's observation that it was a terrific argument. It really was dazzling. Um, and the basic argument in the case, well let me start, let me stop there and ask Justice Ginsburg, um, what is it that you were trying to accomplish in Frontiero?
Ginsburg:
Geoffrey, let me begin where you did talking about how it was in the not so good old days when women couldn't be lawyers, bartenders, couldn't serve on juries unless they volunteered. There was a huge difference in attitude to-- towards gender lines in, in the law and race lines. I think the justice is understood that race discrimination wasn't odious thing, but gender classifications where we got it as favorable to women as operating benignly to protect them. So the idea of not allowing, uh, the mother and daughter gossip to be bartenders. What bars, what places where, where sometimes is rough goings on. We need to protect the women from that kind of atmosphere. Same thing in court rooms. Sometimes unpleasant things are said in the court room. The effort was to get the judges to see that gender discrimination was harmful to women, also men and children. To see these as not operating benignly in favor of women, but in fact putting them off in a cor-- corner, giving them a very small space in a world occupied by men for them to see that what they regarded as a preference is in fact discrimination. That was the, the major effort.
Stone:
And legally, what was the argument that you were presenting to the court in terms of um, how to get the court to change doctrines? So it was done there was to respond to that.
Ginsburg:
We argued three, three ways starting from the top. That is because gender discriminations are most often harmful to people that the court should look at them with a particular skepticism, almost akin to race discrimination. And if the court were not willing to go that far, then one notch down. What's today called intermediate scrutiny, I prefer to call it, um, to justify a gender line in the law. You must have an exceedingly persuasive justification. And then to say in the end, drawing a line simply on the basis of gender is irrational. So that was sweet. We had all three tiers, the top strict scrutiny, the middle exceeding the persuasive justification and then rational basis.
Stone:
So, so at the core of the argument was this notion that that laws that discriminated against women should no longer be thought of as essentially innocuous or, worse, beneficial. Um, and that to some degree they should be thought of, um, as analogous to discrimination on the basis of race. Uh, and the question was whether the court then would basically abandon the rational basis approach for gender as it could abandoned it for race and instead demand and more persuasive justification. So it's interesting. I can add a little bit about what happened inside the court at this time. Um, after Justice Ginsburg made her argument, the judges went back to conference and they voted to invalidate the challenge law, which discriminated against women, but they agreed to do so on the ground of the 1971 decision, Reed vs Reed, that basically we're going to say again the law is irrational and not reach any of the harder questions that Justice Ginsburg can put before the court. And Justice Brennan, for whom I was a law clerk, was assigned the task of writing the majority opinion.
Stone:
And so Brennan went back and, and we, we, I was the law clerk who was assigned to task of working with him on that opinion and so he, he went back and he, he drafted the opinion that said this is irrational and decided this is just disingenuous, right? That we can't really invalidate that on this ground and, and be acting in a principled way. In fact, there is real similarity between discrimination against women and discrimination against African Americans as Justice Ginsburg had arguments for forcefully, both in the brief and on the oral argument. And that the, the principled way to address this question was to take that on, um, head on. And so, uh, Justice Brennan then wrote an alternative opinion that essentially copied Justice Ginsburg brief. Um, I can say that cause I'm the one who drafted it.
Ginsburg:
Did you know that? That was always my aim at when I was, when I write, when I wrote brief, I wanted to give the court something that the court could convert into an opinion.
Stone:
Great. And it was, it was, it was a perfect brief from that standpoint. It was basically a judicial opinion on a silver platter. And that's what I'm like, deal. That's sort of the ideal brief gives a court. Um, so, so what Justice Brennan did then was to circulate both opinions to the other justices and he said, the first one says that this law is irrational. Uh, the truth is I don't think that's really a principled result. Uh, so I've drafted for myself this alternative opinion, which basically says discrimination against women is especially problematic under the Equal Protection Clause and is unconstitutional. Um, unless there's a very persuasive justification. And that's the one I plan on signing myself. Is anybody interested in joining me? And very quickly we received memos from Justices Douglas Marshall and White saying that they agreed with the Ginsburg opinion. Uh, and then we waited.
Stone:
And the problem was that several of the justices were very sympathetic to this approach. They understood that saying that the law was your rational was intellectually and doctrinally problematic, but the equal rights amendment was still pending at that time. And uh, several of the justices, particularly Justices Stewart and Powell. I'm not giving you any secrets now; this is all public. Um, Justices Stewart and Powell basically came to Brennan and said, we agree with you and with your opinion, but we just think it would be awkward for the court to take this position now while the Equal Rights Amendment is pending because it would look as if we were trying in some sense to preempt the amendment process by essentially treating the Equal Protection Clause as if it was doing what the Equal Rights Amendment, uh, would have done if it gets enacted. And Justice Brennan's response was, first of all, we have to decide this case on the basis of the Constitution as it now exists.
And I'm convinced the Equal Protection Clause invalidates this without regard to what happens in the political process with respect to the Equal Rights Amendment. And also Justice Brennan argued that if we, if we take the approach you're suggesting, which is we wait and see and if the Equal Rights Amendment doesn't get enacted as in fact, obviously didn't, he said it'll be even more difficult for the court to do the right thing because then it'll look as if, okay, the country has rejected the Equal Rights Amendment and now we're going to turn around and interpret the Equal Protection Clause is if the Equal Rights Amendment had been enacted. So that would be particularly problematic. But in any event, he was unable to persuade Justices Powell or Stewart and Frontiero came down as a decision invalidating the challenged law, but with only four justices adopting the Ginsburg approach, um, and the others concurring on this narrower approach. So I'm curious, Justice Ginsburg. What was your reaction when the opinion finally came down and you saw what the court had done or not done?
Ginsburg:
I thought well, well, Aryeh Neier who had been head of the ACLU, came to me with this opinion and said, Ruth, you get four to sign on to a sex as the suspect classification. I said, my reaction was, they should've waited until there were five. Because what happened with that Brennan opinion is then the court stood still. It wasn't going to go up to strict scrutiny. It was going to stay where it was on this, middle, middle, plain. So I stopped arguing for strict scrutiny and we used the, we used the intermediate standard, which the court finally acknowledged it was applying when you write about Powell. And he was explicit in his opinion, he said, we ought not go there while the equal rights amendment is in the political hopper. And that was their justification. Well, there wasn't, there wasn't gonna be an equal rights amendment. But in Craig against Boren, another Brennan opinion, the court finally said, elevated scrutiny applies to gender classifications. We should be suspicious about that and analysis middle tier. But instead of doing it in a case like Sally Reed's or Sharon Frontiero, they did it in what I call the near beer case. Oklahoma had a very silly law. It said women can drop by 3.2 beer at age 18, but the thirsty boys have to wait til 21.
So in that frothy case, the court declared that gender classifications got elevated, intermediate, intermediate scrutiny. They didn't do it in Frontiero. Obviously they were for strict scrutiny. And the next case, um, Steven Wiesenfeld's case about a man whose wife died in childbirth, left him sole surviving parent wanted to care for his child personally, but Social Security gave mothers benefits, not fathers benefits. The court was unanimous in, in that case, but they didn't refer to anything about an elevated standard of review. So I think perhaps if Brennan had waited for there to be one more, then we would have had sex as a suspect classification. But who knows?
Stone:
I actually don't think so. Um, oh, let's turn to Roe. Uh, so the other case that would percolating in the court at the exact same time, these two cases were happening simultaneously, um, was Roe vs Wade. Um, and I guess we should set the stage, stage for that. Um, when you were a young woman, um, what was it like, what were the options available to, for a woman who found herself with an unwanted pregnancy? What was, what was the world like for someone faced with that dilemma?
Ginsburg:
For most young women, it was to marry the guy and that's what happened. And I don't think that that was a recipe for living happily ever after. Some people in the--. Abortion was criminal in the United States. So if a woman found a doctor or anyone willing to perform an abortion, she was taking a tremendous risk. If you were, heeled, well there were places you could go abroad, so Cuba I think was the nearest place. But some people went to Switzerland or as far as Japan, but for most, most, um, young women, the not solution, but the only, the only way to deal with it was to marry them.
Stone:
So most people don't realize, by the way, that, that in the United States until the late 19th century, abortion was not a crime until quickening, which was basically the mid-point of pregnancy. And it was only in the 1870s and later that, uh, abortion became a crime in most jurisdictions from day one of pregnancy. Uh, and as Justice Ginsburg says, by the time we get to the 1950s, uh, that was universally the law and women did face this, this problem. Uh, and then derivatively faced the problem to the extent they, uh, took it seriously, uh, of there not being any option. Now in the 1960s, this began to change. A few states began to modify their abortion laws, um, allowing early term, uh, abortions if the doctor found that it was necessary to serve the life or health of the mother. Um, what do you think--?
Ginsburg:
Of the woman.
Stone:
Of the woman. Thank you. Yes. Of the woman. Um, so what do you think brought about this change after 90 years of, um, pretty much a single position against abortion?
Ginsburg:
One aspect of it was the women's movement, which was coming alive, not just in the, in the United States, but all over the world. And Geoff, I'm sure you remember the case of Sherri Finkbine. This is a woman from Arizona who had taken thalidomide. The forecast was that, that if the pregnancy went to term, the child would be severely deformed. She chose to have an abortion and she came to Sweden to have it. She could have it there safely and it was loud in the U.S. press about about her case. Um, and okay. So women began to think, well, why shouldn't I be able to make this decision, this most important decision, for myself? Why should it be the government who makes the decision for me? I think, the revived feminist movement in which the United States was one of many participants explains the difference, but perhaps you have a different idea, Geoff.
Stone:
No, I think, I think that that obviously was the primary motivation. And so what would be, what happened is a few states began to liberalize laws. Um, and there was, began to be a pushback, particularly from the Catholic Church. There was a pretty strong pushback against this, uh, this early set of changes. Um, in New York for example, the state of New York had enacted a, uh, a more, uh, liberal abortion law. Um, and then the Catholic Church opposed it aggressively and the legislature actually voted to repeal the law. And Governor Nelson Rockefeller vetoed the, the action by the state legislature. Um, one thing interesting noting about the attitudes at this time ,by the way, is that Republicans were much more favorable towards abortion at that era than Democrats. Um, and public opinion polls consistently showed that. Said, although the majority of Americans, um, were in favor of liberalized abortion laws.
Uh, it was Republicans who were more inclined and Democrats who are opposed. And the reason for that was because most Catholics were Democrats. And so even though today we would automatically assume the opposite, um, the fact that Rockefeller vetoed this law was not unusual because the Republican party at that time was actually more sympathetic than the Democratic Party. Um, so Roe v. Wade comes along and, uh, the court in a seven-two decision, uh, holds, uh, abortion laws in the United States pretty much across the board as they then were written at least unconstitutional. Um, and as the couple of preliminary observations about the case that are worth noting, people today think Roe v. Wade when it was decided was seen by the Court or even by the public, as a highly controversial and divisive decision. But in fact, it wasn't. Roe was a seven to two decision. It wasn't five, four, three of the four Nixon appointees supported.
And one wrote, the majority opinion. Um, public opinion was very substantially supportive of Roe v. Wade. Um, although there was a sharp Catholic response, one of the interesting moments in the court that year is, is Justice Blackmun and Justice Brennan were inundated with tens of thousands of letters, most mainly written by parochial school kids, um, essentially calling them murderers. Blackmun because he authored the opinion and Brennan cause he was the only Catholic justice. Um, but in terms of the, the national response, it was actually pretty muted. Um, and Justice Stevens likely to tell the story that when he was nominated to the Supreme Court a couple of years later, um, he was not asked a single question and his confirmation proceedings about Roe v. Wade or about abortion. It just wasn't thought of yet as controversial. Uh, so it is important to understand that at the time, even within the Court, um, Roe was thought to be a difficult case in terms of the constitutional and a litigal issue, but not really seen as the kind of, um, politically shattering decision that we've looking back, have come to see it as.
Ginsburg:
Geoff, to put a footnote to that there was another, a reproductive choice case before the court that term. I don't know if you remember it, but it was Captain Susan Struck against the Secretary of Defense. It would have been my choice for the first reproductive freedom case to come before the US Supreme Court. This was Captain Struck's story. She was in service in Vietnam when she became pregnant. In those days, pregnancy was automatic ground for discharge from the service. Captain Struck's commanding officers said, Susan, you have a choice. You can have an abortion on base. This is '70, '71. You're going to have an abortion on base, which the military offered to women in service or dependents of men in service. Or if you're not going to do that, you're out.
Captain Struck said, I am a Roman Catholic. I will not have an abortion, but I have arranged to surrender this child at birth for adoption. I would use only my accumulated leave time. She lost that argument with the commanding officer. They shipped her back to the West Coast. She was stationed in Seattle and then, uh, very able diligent lawyer for the ACLU of the state of Washington got her discharged stayed month by month. So she was always inside fighting to stay in rather than out trying to get back in. Anyway, she lost in the District Court challenging that "you're pregnant, you're out" rule. She lost in the Court of Appeals but two to one where Dunaway wrote an excellent dissent in the ninth circuit. And then I wrote a petition for cert together with Joe Hora, the ACLU. The Supreme Court granted cert, and we began to prepare it. We wrote the two briefs at the same time, the Frontiero brief, and Captain Struck's brief.
We were notified that the solicitor general had filed a motion to remand the case for consideration of mootness. Why? Because he had persuaded the Air Force to waive Captain Struck's discharge and to change the regulation prospectively. So now the rule was you're pregnant? If you want to stay in, you can make an application and we will or will not grant it. So Susan was not going to be discharged. The solicitor general while the motion asking for the case to be returned for consideration of mootness. I called her and said, Susan, is there anything we can say to show that your case is still alive? She first said, I would not have chosen to be assigned to Minot Air Force Base, but we can't make much of that. And then she said, I've got all my pay and allowances.
There is one thing: My dream is to be a pilot, but the air force doesn't give flight training to women. It's 1972. We laughed because we knew that was still an impossible dream to challenge the restriction on flight training. Now I think it would be impossible to try to defend such a, such an exclusion. But that was Captain Struck's case. And the idea of getting that to the court first was to say, government should stay out of this. Here's Susan Struck. She wants to make the decision for birth, but the government is saying you do so at the cost of your job. I wish that had been the first case. I think the Court would have better understood that this was a question about a woman's choice. But I don't know if, if the, the, I wasn't an insider as you were, whether the court ever made a connection between Susan Struck's case in Roe v. Wade.
Stone:
I don't recall that they did. I mean, they may have been like, it's been 40 years, but I, uh, I don't recall that that anyone inside the court, connected the, the pregnancy discrimination issue with the abortion issue in the way you just described it. Um, but let's suppose that that a woman in 1971 is, um, prosecuted for having had abortion, um, in the state of Alabama and she raises the defense that she had a constitutional right to have an abortion. Um, and that case let's, let's suppose came to the Supreme Court in lieu of Roe, um, and you were a justice at that time. Um--
Ginsburg:
You, you, you're presupposing that she's going to be prosecuted. I think it's, it's an unlikely, uh--
Stone:
We could have the doctor prosecuted.
Ginsburg:
Yes, the doctor.
Stone:
Okay, the doctor.
Ginsburg:
Ordinarily, it would be the doctor.
Stone:
Okay. If you prefer the doctor. That's okay. But it's okay.
Ginsburg:
You want to make it--
Stone:
I was been trying to make the most dramatic, easy case. But yeah.
Ginsburg:
The doctor is a harder case because of medical regulations about safe and sanitary conditions.
Stone:
But the state says, any doctor who performs an abortion goes to jail.
Ginsburg:
Yeah.
Stone:
So if you were on the Court and that was the case that was presented, how do you think you would have voted back in 1973?
Ginsburg:
Well, with the hindsight, with, with Roe as the precedent, with Roe as the precedent--
Stone:
No, no. No Roe. Clean slate.
Ginsburg:
Why do you think that case is different from, what was the Roe case of a woman who was pregnant and there were, were a few plaintiffs there. There was a doctor all arguing to have this state of Texas law declared unconstitutional. Why should there be any difference between the response to the woman who was being prosecuted for having had an abortion or Roe? I think they would, they would have come out the same way because as you pointed out, Roe was a seven to two decision. It wasn't controversial at the time. The Susan Struck's case is a both during the Nixon administration and it's the Nixon administration that is tolerating having army bases, armed forces bases made abortion available to women in service and dependents of men in service. So at that time it didn't seem controversial. It didn't seem controversial to the, to the Court. I think you are quite right in pointing out that there was more Republican support than Democratic support. Some people thought that that was always an aspect of the population, zero population growth idea. If, if birth could limited, we would all be better off for it because they wouldn't be too many people in the world. So I think that that the concern for population growth in the early seventies was a factor, was a factor in it.
Stone:
What I'm trying to get at though is simply if you were on the Court at the time of Roe, right, how would you have voted? Any variations to the case is fine. That's fine.
Ginsburg:
I would, I would have said this most extreme law is unconstitutional. Texas allowed abortion only to save the life of the woman. She could be left totally debilitated and it wouldn't matter. She could have been the victim of rape or incest and it wouldn't matter. The only thing was her life. That was too extreme and I think it would have been quite easy for the court to rally round a decision that said stacking the deck against the woman that way is just too far to go. My notion was that if the Court, instead of covering, covering the country so that every abortion law, even the most liberal, did not measure up to the court decision and simply small had said this, most extreme law is unconstitutional. Then the change that was occurring in states, like my home state was one of the, in the early seventies was New York, California, Hawaii, anything, Alaska, Alaska. If a woman could travel to one of the states, she could have a safe abortion.
Stone:
So, okay, so, so basically the one question in Roe was if the Court was going to invalidate the law, how broadly would it do so? So what Justice Ginsburg, Ginsburg has suggested is that from her perspective at that moment, the right decision would be a very narrow decision, which would've said the Texas law, that was actually an issue in the case, which prohibited any abortion except to save the life of the mother, is unconstitutional. And we don't have to decide whether any of the other restrictions are permissible.
Ginsburg:
But what didn't, what, what I had difficulty understanding at the time, Geoff is here is Sally Reed's case. Sally Reed is a woman from Boise, Idaho. Her young teenage son died under tragic circumstances. She and her husband were divorced. The boy died when he was in the custody of his father. Sally wanted to be appointed administrator of his estate and the law of Idaho at the time said as between persons equally entitled to administer it, to see his estate, males must be preferred to females. Just that clear. It was a perfect first case but here is Reed at the Court and the Court writes very small as you said it was this is an irrational, irrational classification and at the same term it decides Roe v. Wade in a stunning opinion that makes every abortion law in the country unconstitutional. So Reed said this most extreme law is no good. But Roe said, any restraint, we're going to do the whole job all at once. No in the first trimester, no restrictions in the second trimester. Restrictions in the interest of the health of the woman. They, they wrote this entire charter to cover the waterfront where in we they wrote so small. I couldn't understand why the justices is in that very so same term took such a different view of how far and how fast the court should move.
Stone:
But in Frontiero, you were asking the Court to take a huge step. Yeah. You are not asking the court to say, we'll go one step at a time. We'll, we'll sort of play it by ear over, over 20 year period as to how much discrimination you can be against women. You are doing exactly, in your argument in Frontiero, you were saying, okay, none of this incrementalism, right. Women are like African-Americans. Let's just forget about all the intermediate steps.
Ginsburg:
I wouldn't quite-- Yes, I made a very strong argument for sex as a suspect classification. I put that first.
Stone:
You persuaded me.
Ginsburg:
But my notion was that I would do that four or five times and the fifth time, the Court would say are now we declare this law unconstitutional. That, now we see the light. As I said before, I wanted them to buy my argument but not so soon. Not that the second time up at bat. That ,that was-- my notion was sort of introduce this idea which was in the Reed brief as well. Um, and, and then maybe the fourth, maybe the fifth, maybe the sixth time they confronted the same argument,--
Stone:
You were just too persuasive.
Ginsburg:
So that, that was-- so while I made the argument, I really expected that the court would wait to hear it again and again before, before they made that.
Stone:
So in, in Roe what the Court did, as Justice Ginsburg said, instead of taking this very incrementalist narrow approach and saying, okay, the Texas law is unconstitutional, but we're not going to decide anything about what other restrictions can be placed on the, on a woman's ability to choose. All we're going to say is the Texas law is unconstitutional. Um, so, so then suppose the next case came up and, and, and the state said, well, um, a woman can have a, uh, an abortion if she's, um, been raped and the, but the, but the party to the case is somebody who wasn't raped. Right. So would you again say, okay, that's, that law's unconstitutional, but we don't decide any more than that. So this is an incrementalism that you would, you would've thought appropriate.
Ginsburg:
But some things would have happened in the interim. That is the state legislatures would have reacted in it as the, they, there was a range of positions at the time of Roe. It wasn't. So, uh, it was fluid. And there were many states that had adopted the position of the American Law Institute, which was a grounds. So the, there was rape, incest. There was, um, the woman's health, mental or physical. So it was the most extreme law, Texas, which was a no, except to save the woman's life. Then there were the states in between with various grounds. And then it was states like New York, where at least the first trimester it was, it was a woman's choice. Another feature of Roe is Roe really isn't about the woman's choice is it? It's about the doctor's freedom to practice his profession as he thinks best. You never, read the Roe opinion. You will never see the woman standing alone. It's always the woman in consultation with her physician for the picture that I got from that, from that decision was tall doctor and little woman needing, needing his advice and care. It wasn't woman centered. It was physician centered because Roe was not just restricting the woman's choice. It was telling the doctor, even if it is in your best medical judgment that this person have an abortion, you can't exercise that best medical judgment. That, that wasn't, I don't know of any justices on the Court appreciated that aspect of it, that it was very much about the doctor's freedom to practice his profession.
Stone:
Now, I have to say, being inside the court, I don't think anyone inside the Court actually felt the case that way. Justice Blackmun, because of his own idiosyncratic backgrounds, right, with the Mayo Clinic, stuck the doctor in the story in a way that I think nobody wanted to upset the apple cart. Did try, try to force him to pull it out. But I think the truth is that the justices understood it very much the way that you just described, with the possible exception of Blackmun. Um, and uh, and it is interesting that they didn't, they didn't sort of try to get Blackmun to alter their opinion, but, but let's, let's put how the opinion was written in that way aside for the moment. A key question is, um, did Roe get to the right place constitutionally? So suppose it took 10 years instead of all at one time, right? Ultimately, did the court get to the right place constitutionally?
Ginsburg:
I think that the pattern in in Roe... Roe built on Griswold against Connecticut. The Supreme Court had never had anything about Planned Parenthood until Griswold against Connecticut and Griswold, probably most law students know, it was a Connecticut law that made use of contraceptives by a married couple unconstitutional. So the Court went on a notion of a right to privacy. You can see in that setting you hit think of the police going into the marital bedroom looking for telltale signs of the use of contraceptives. So, so Griswold started out in that privacy line and then the next case was Eisenstadt against Baird where a well known advocate of birth control was having a meeting at some college auditorium and giving out contraceptives.
He, the law prohibited giving contraceptives to unmarried people. So that's the first time an equal protection strain comes into it because Griswold was privacy, privacy with marital bedroom. Then we have Eisenstadt against Baird and it's the, the line is being drawn between married couples, they can have access to contraceptives, unmarried couples cannot. And Brennan wrote that decision to say, that line makes no sense to say that we're gonna punish the unmarried people, uh, and not allow them to have access to contraceptives. So then that had introduced the equal protection strain, but Griswold was, was the model was the model for how Roe was argued, was going to be argued as a privacy case, not as, not as a women's rights case, that, that was.. The briefs that the Supreme Court got where of that nature. But there were other cases because they were washing cases all over the country at the time. Women against Connecticut particularly stressed that this is not about privacy, it's not your decision to have an abortion is not necessarily private. It's about your rights as a woman to control your own life's course. That would, that was not in, in the-- you, you don't pick that up in Roe. That aspect of it, that this is not about privacy. This is about one's choice, how one will live.
Stone:
Right. So the Court clearly does not write a women's rights opinion in Roe. It talks about the, the, the personal autonomy of an individual to control one's own life in terms of certain matters such as whether to bear or beget a child. And, and so it does draw upon Griswold, which talked about contraception and extends that um, to Roe. But, but it's interesting that the Court does not talk at all in Roe about the rights of women. And part of the reason for that I think it gets, brings us back to Frontiero because the justices were not prepared at that time to accept the proposition that laws that disadvantaged women were to be tested by heightened scrutiny of any kind and the had, had, had Brennan been able to get a fifth vote in Frontiero, then it's possible Roe could have been written on the ground that the law in Roe discriminated against women.
Stone:
But given the fact that you couldn't get the fifth vote in Frontiero, there was no way to make an argument that the law in Roe was invalid because it discriminated against women. Because if that was the issue, it was clear the court was going to apply a very low level test and certainly the state's interest on the abortion question is much more credible than the issue on all of the other kinds of issues with women being discriminated against in terms of the life of the, of the fetus and so on. So the court was caught in his dilemma. Right, and that's partly why the term was so interesting because had they been able to come together on your approach in Frontiero, then they, it might've been possible for them to write Roe as a law that discriminates, invalidating on the grounds that discriminates against women.
Ginsburg:
But if they also, if they had paid attention to my briefing stroke, which of course they didn't because it, because they had no need to read it. The case was remanded on mootness ground, but my brief was there, which centered on the woman's choice of whether she will carry the pregnancy to term or abort it. Then the, and I think that surely would have been eye opening. Maybe one of the things is in those days, how many cases when you were clerking, how many cases was the court deciding a year? About 180 yeah, so they had no time really to put one thing together with another. They just had to, I guess you had to churn them out and when you got, when you circulated, that's when I said how did they let that Blackmun opinion through without, because they had so many cases. I think that he wrote it. He came out the way they'd voted to do it would come out and so it was, it was left alone. That wouldn't happen today when we have between 70 and 80 cases,
Stone:
So to basically-- Justice Ginsburg has offered two critiques of Roe. One of them is that the, the Court went too far. It should have been much more modest in what it invalidated. It should have invalidated, the Texas statute and not gotten into all of the other questions that the opinion got into about the first trimester, second trimester, and when the state can regulate abortion and when it can't regulate abortion. It should have simply said, it's unconstitutional for the state to prohibit abortion except to save the life of the mother. And we don't decide anything else about what other restrictions might or might not be constitutional. Leave that for another day. And whereas the Court, interestingly, given that it was seven Republican appointed justices and, and free of the poor Nixon and justices, was extremely activist, right? This was a very activist opinion. Um, and it said, so that's one, one criticism and the other criticism is that the court wrote an opinion that was less focused and indeed not at all focused on what Justice Ginsburg believes should have been the core issue, which is the rights of women to control their own lives and instead writes this opinion in much more, uh, in ways that are, that are removed from that as the, as the core question.
So, so let's, let's, let's look at the, the, 'cause I know one of the things you've said many times and, and, and including recently is that, um, it mattered that Roe went as far as it did in a negative sense. It's not just that as a matter of taste, you would have rather seen the Court be incremental rather than bold, but rather that we have paid a huge price because the Court made the decision to be that activist, that aggressive, that bold in taking on the entire issue of abortion as opposed to writing a much narrower opinion with a much more limited effect. Um, so I think it'll be interesting for you to talk a bit about, about how you see the, the effect of the Roe decision on the polity and on what's happened in this country over the last 40 years.
Ginsburg:
Roe became a symbol, I think, for the right to life movement. There was an annual parade in DC on the day that Roe was decided January 20 something. They had a single target to hit that this decision is most undemocratic decision by nine justices, who nobody elected to make policy for the country. That charge that, the, what a great organizing tool it is. You have a name, you have a symbol. Roe v. Wade, you can aim at that. This decision was made not in the ordinary democratic process, but by these nine unelected men. I know that Reva Siegel and Linda Greenhouse have written persuasively about the abortion. Anti abortion movement began before and it continued after and Roe didn't, didn't cause this backlash, but I think there's no getting away from the presence of a single, a single target to aim at how many, how often has the name Roe v. Wade, Roe v. Wade, um, been the center of the opposition. That was my concern, that the Court had given the opponents of access to abortion, a target to aim at relentlessly and attributed not to the democratic process, but to nine unelected old men. That choice to make sso that, that wasn't my, my criticism of Roe was that it seemed to stop the momentum, which was amend, momentum wasn't on the side of a change then it made a comparison in this country between no fault divorce and access to abortion. When I was the age of most people here in my home state is only one ground for divorce, adultery. Inside of 10 years, every state in the nation had changed to some form of no fault divorce. And I am, invisioned that there will be a similar thing with abortion. There'd first be states like New York that said at least in the first trimester it's up to the woman. Then there'd be the states in between following the ALI model. Maybe the ALI in light of the changes in the country would may would would, would change its position. I expected much more back and forth, much more dialogue and among people who, who play in the political process.
Ginsburg:
That's... That's when I uh, that would have been my ideal picture of how, how this issue would have gotten resolved instead of having the, the Supreme Court, as the, the single, the decision maker. And of course the history of the year since then is that the momentum, momentum has been on the other side. The cases that we get now on abortion are all about restrictions on access to abortion and not about expanding the rights of the woman.
Stone:
So there's a huge counterfactual problem here in trying to figure out what, what would have happened had things been different, right. So one scenario is that Roe v. Wade created essentially the moral majority and the, the Evangelical and Catholic response to Roe and, and the political response to Roe has made it a divisive, complicated political issue to this day. And that, that that's a huge negative. And that if, if the court instead had taken a much more modest approach and allowed the process to work itself out through the legislative process in all the different states, that we would never have had this, this, um, response to Roe v. Wade. There wouldn't have been a Roe v. Wade in anybody's consciousness. Um, and it all would've worked out in the end. So most state legislatures, maybe all state legislatures would have come around to liberalizing abortion laws. Um, and we wouldn't have had this, this feedback.
The problem of course, those who disagree with Justice Ginsburg, uh, would say that that's a, a nice counterfactual, but it's not realistic. Um, and, and the, and the, this, the opposite perspective on it. There's, there's two sort of at least two components to the, to the opposite perspective. Uh, the first is simply that at the time of Roe, uh, no one could have anticipated what was going to happen. At the time of Roe, the justices thought this was not going to be all that big a deal. They knew it'd be at the moment an issue. What they didn't know would happen was that the Republican Party would latch onto Roe as a way of trying to draw Catholics out of the Democratic Party into the Republican Party and, and to use it as a lever in the political system and therefore to make it into Roe v. Wade as we now see it rather than as a decision which would have not made that big of a, a, a wave.
Uh, and so the justices at the time, I think it's fair to say work, were oblivious to this possibility and indeed it didn't happen for quite some years. As Justice Stevens pointed out, as I mentioned earlier, and he was not even asked to save a question about Roe v. Wade, when he was, he was confirmed. So this was a political development driven by politics that occurred several years after Roe. And so, at the time of Roe at least, this was not something, at least any of the justices certainly anticipated. Um, and the second thing of course is whether the counterfactual is true. Right? Um, would it have been the case that today if the Court had been much more modest and row that we would be in a better position with respect to women's right to choose, if it had been the left of the legislative process? Right. One scenario was it would've been like no fault divorce and most states would have adopted it. Another possible scenario is that, um, 10 states might've allowed abortion even to this day, the vast majority of states would not have allowed it. Um, and for millions of women every year they would have been in a much more-- much worse position than they are today, in terms of access to abortions.
Ginsburg:
Not if they could buy a plane or a train ticket. And that was that. So let's say there were 10 states, people would see more and more that the answer to the question, does a woman in the United States has access to abortion? Yes. If she can buy a train ticket to get herself to another state or plane ticket. Then once, once you have, if just as in the case of divorce, once you have a number of states doing it, then there is access provided. The woman is sophisticated enough to find out that she's pregnant early enough and can travel. That is essentially what we have, what we have come to that situation in the United States just now where many states have severe restrictions on access, but any woman in those days can get out of it simply by traveling someplace else in the United States.
Stone:
Um, I would just throw back, not, not a convincing argument, but an argument that is worth thinking about is one could've made the same type of argument in Brown, Brown vs Board of Education and said, well, if you don't like living in a state that has segregation, move to a different state, right? Supreme Court doesn't have to invalidate segregation in Alabama if you don't like it, you know, move to, move to Pennsylvania. Um, and I'm sure you wouldn't have accepted that argument there. Uh, but, but, but the answer to that would be, well yeah, moving your family is a much more difficult thing than buying a train ticket. So there was that difference. So I want to leave time for questions. Um, so there's a microphone up there. Um, for those of you who would like to ask, um, the justice questions, I assume none of you want to ask me questions, which is fine. Um, you should go to the microphone right back there and, um, uh, the justice has been gracious enough to agree to, um, to take some of your questions.
Ginsburg:
Well, I'd just like to say something in reference to just last comment because I would want the young people to be aware of it. That's Brown v. Board. You said, well could you make that? The reality was that we had just fought a war, World War II, a war against racism. We went into that war with segregated troops. How long could segregation apartheid exist in the United States when we have just fought this war against racism? In Brown v. Board, the government filed a brief, uh, on the side of the, the children and their parents and said, essentially we are being embarrassed in our international relations by maintaining segregation in our schools. The Soviet Union particularly is using our example, uh, showing the United States as a society that mistreats many of its people. They said the plea was very strong for the State Department. Come out against segregation, Supreme Court, and we will no longer have this huge embarrassment to face in our international relations.
Stone:
So the Court does the bidding of the State Department?
Ginsburg:
Well, it's certainly helped to have the government on the side of change.
Stone:
They're really no questions? Oh, here we go. Yes sir. And no, please if you are interested. Yes.
Audience:
Um, first, thanks so much, Justice Ginsburg, for coming here. I think we're all really thrilled by this event. I was wondering, uh, I think a lot of us were surprised by your response about how the courts should have handled the abortion debate. And I was wondering, do you think the abortion issue is uniquely one that should have been left to the democratic process? Is there something special about it or, in general, should these sorts of contentious issues be resolved that way?
Ginsburg:
No, I didn't say, I did not say should've been left to the democratic process. I said, I suggested that it would have been healthy if there had been a dialogue just as their work was in the gender discrimination cases. In that decade of the '70s, it wasn't the court acting on alone, but the court decided a case, this gender line is no good state legislatures. The U.S. Code, the entire U.S. Code with canvas to identify all of the gender lines in it and most of them will change. So it was every, the whole political system was moving. The Court was putting its stamp of approval on the side of the change. The legislators were looking at their laws, getting rid of the obsolete ones. It was everything. It's the way, it's a very, very healthy way for a democracy to operate when everybody is involved in thinking about change and what is good for the society. So it was hardly that the Court should have stayed out of it, but the Court and the gender discrimination cases, for example, every year or two came out with another decision that said, this gender line is arbitrary. It was that dialogue, the conversation with the different players in, in the political process. We're engaged in that. I thought is it healthy for the system?
Audience:
Thank you.
Audience:
Hi. I wanted to ask you, do you think that 40 years after Roe, we've seen a recent rise in several states, in the antiabortion legislation, is this an opportunity the Court should or will take to reevaluate or reaffirm Roe?
Ginsburg:
I didn't hear the end of the question.
Stone:
The question is whether you think that in light of the fact that there's been so much legislation across the nation trying to restrict various aspects of the, um, the right to abortion, that, that this might lead the Court to reevaluate Roe itself.
Ginsburg:
Uh, I've been asked that question and one my, one of my responses to it is, you know, it's not gonna matter that much. Take the worst case scenario as opposed to court, which is precedent bound and as already once said in the Casey case, Roe v. Wade is the precedent and whether they adhere to it, but take the worst case. Suppose the decision were overruled. You will have a number of states that will never go back to the way it was. And then again it will be a question of is access available in the United States? Yes it is. Any woman who is fortunate enough to be living in one of those states or any woman who can travel to those states, frankly who it leaves out are poor women. So if you have the sophistication, the money, you are going to have some place in the United States where your choice can be exercised in a safe manner, but if you don't have the wherewithal, then you may be stuck. And that would be the situation in the United States if the Court were to turn around on Roe v. Wade, it would mean that poor, poor women have no choice. And that doesn't make much sense. I think that's a matter of national policy.
Audience:
Hi, thanks so much for coming and speaking to us today. I'm sure we all really appreciate it and are really excited. So thanks. First of all. Um, also I just want to ask, you brought up kind of an alternate way of looking at Roe with, uh, your approach in Frontiero. And I was wondering if you could talk a little bit about, um, sort of the benefits maybe, um, of looking at it from a woman's right to choose perspective as oppossed to the privacy perspective, if that was maybe more intellectually sound or if it had a stronger base in the Constitution or if they're just alternate ways to look at the same problem that have benefits in your eyes.
Ginsburg:
For the people who were involved in litigating... in litigating Roe v Wade, they were riding with a winner. They had a winner in Griswold, so they, that's the argument that they made. The other, the, the idea is that the idea that a woman should be able to control her own lifes course to make that most important decision. It seems to me that is really the principle at stake. No one is pro abortion in the sense that they would like to encourage women to get abortions. The question is, if the woman has an unplanned pregnancy, should she, should she have the choice?
Audience:
Hi um, I had a question about Casey because first, how much did you think that the development of the moral majority or the right to life movement had the establishment of the undue burden standard developed in Casey and how influential is the undue burden standard in creating the conditions that you're describing in your columns where women are as restricted now possibly would have been?
Ginsburg:
What was the first part of her question? Could you repeat it?
Audience:
Sure. I'm sorry. Um, how influential was the development of the right to life movement to the creation of the undue burden standard established in Casey?
Ginsburg:
I don't think that the political movement explains the undue burden. There were people who were troubled by how far and how fast Roe had gone and wanted a more moderate approach so that, that was, but I don't think that the, the, the Court said, oh my goodness, look what's going on. We have this right to life movement. We have to do something, uh, to show that we are, that we are reactive to that movement. We are responsive to it. I don't think that was the case. I think it was a concern that here was this decision, um, and maybe with not very judicial so it should be cut back to the way the justices who came up with the undue burden test. The way they, the way that they described it.
Audience:
Thank you, Justice Ginsburg, for coming and speaking with us. My question was, uh, you know, in the United States like ours where women generally have the right to abortion, is it right to impose obligations on fathers who pay child support, uh, that when they would choose not to carry the baby to term?
Ginsburg:
Yeah. On that one, I think most states' legislatures have said that you, you, you, you, you are a parent of a child. You have an obligation to support them, man or woman. And the child is there, you are its parent, you are obliged to support it. So I suppose I would not be enthusiastic about legislation to say if the man offers to pay for the abortion, then he's off the hook. Is this guy free? I don't really like that solution anymore than what that, what the solution used to be in the old days of the, of a guy who, who was uh, who was sued as being the father of a child and he would then bring five of his buddies to say, we slept with that woman the same time.
So I think if the child is there, that state's interests is that, that, that, that, uh, should be supported. And if there is a parent, male or female around, then it will cost the state less than if the state has to pay for it.
Audience:
Hi, Justice Ginsburg, thank you so much for coming out. You're a big role model for lot of the young women on campus and it's an honor to have you here. Uh, I'm curious to what degree you think the role of the morality and human rights principles are important as a litigator or as justice in terms of women's rights law decisions?
Ginsburg:
I suppose morality, and rights is what's behind our whole conception in our bill of rights, behind the, the contemporary human rights documents in the United Nations, in Europe, all over. It isn't, isn't, isn't that a reflection of morality? I think so.
Stone:
Um, I, I'd be curious to ask you a sense of, um, cause basically what you've put forth here is a very, um, uh, restrained view of the role of the Court and how the Court should, uh, should act. Uh, but in recent years, a lot of the criticism interestingly has come from the other side. So traditionally, at least in the last half century or so, it's been primarily, uh, Conservatives who've, uh, criticized the Court, uh, for making aggressive, what they perceive to be aggressive decisions in a liberal direction, whether it be the Warren court or Roe v. Wade and so on. Um, but in more recent years it's been, uh, essentially Liberals who have criticized, um, the conservative justices for cases like, um, Heller involving second amendment and guns or Citizens United involving, uh, issues like, um, uh, campaign finance reform, uh, of being extremely aggressive in their interpretation of the Constitution and essentially doing pretty much what the court didn't Roe except on these other issues. Um, is that, is that, do you think a fair critique?
Ginsburg:
I think it depends on whose ox is being gored and that's what's, I mean, and I think if you, if you judge activism by overturning the legislative product, this correct Court has to rank very high on the activism scale and I have to rank very, very high on the restraint scale and think of, just take something like punitive damages, punitive damages. There were many people who are concerned that they've got sky high, that got to do something to put a lid on it. And if the legislature won't put a lid on it, because, there were too many lawyers represented in the legislative, then we got to get to court, we've got to get the high court to say it violates due process. And more and more the quarter said, yes we agree with that argument. Dam-- damages go too high it violates due process. I think that I'm just about the only hold out on the other side and a real states' rights person. This is up to the states and the legislature to decide what kind of tort system they want to have. And it's not for the federal government to tell them they have to have a ceiling on damages, but I've been used to watch how, how the court has really that they using due process, substantive due process in that area.
Very active activists, don't you think? But the people who were down on the Warren court would be applauding that kind of activism. So I said it depends on whose ox is being gored.
Stone:
Is there is the principled approach, do you think one of basically judicial restraint, is that the right approach?
Ginsburg:
Do I think--
Stone:
…that the right approach for justice to take in interpreting the constitution is judicial restraint.
Ginsburg:
Well it is not restraint in the sense that you keep things as they are. You stop any development of the law. It's that you, as I said earlier, the Court can put its stamp of approval on the side of change and let that change develop in the political process instead of saying no and not permitting the political system to evolve. That's, that's essentially my, my view of it.
Another question?
Audience:
Hi, Justice Ginsburg. Um, I was fortunate to recently be able to see the Makers documentary that was on PBS that you were in. And at the end of the documentary it seemed like a lot of the women who they interviewed who were involved in the women's rights movement in the '70s and the '80s seem to feel like the movement is kind of dying out now with our generation. I was curious where you see the women's rights movement going today and what you think women in general and women in law school can do in the future to bring about greater equality for women?
Ginsburg:
Yeah, it's a sadness to me that in some places the word feminism is considered the f word. All it means is you think that women should have the same opportunities that, boys and girls should have the same opportunities to use their God given talent and be whatever they want, they want to and have the ability to be. That's what being a feminist means. It's free to be you and me and I think that it's, it's unfortunate that the young women today, for example, I would love to see the Equal Rights Amendment adopted. Now, young women don't seem to care about it, but if you pick up any constitution in the world written since 1950 you will find an equal rights amendment in it. Ours doesn't have one. Makes me feel bad for my granddaughters that they don't see that in the pocket constitution. That's something that young women could care about. But now all the doors are open. No, no longer living in that wanted did not, not wanted here, but we haven't come all the way as I think one aspect of the Walmart case illustrated. It is a test for women to become middle managers. So they go through the whole process. They're doing very well except for the final interview and at the final interview they flunk disproportionately.
Why? Well, the interviewer sees someone who looks like the interviewer and you tend to trust people. You know what you want, you trust people who look like you. The woman is different. So all things considered you will prefer yourself. You'll prefer the man for the job. Making people realize that unconscious bias, these are not people who are out there to discriminate against women, to put them down, but is that unconscious bias that's still operating that women must overcome. And then there is the problem of how do you combine successfully a family life and a work life. Those are issues that young living should, should care about. And they should also be interested in helping women who are not able to help themselves. The women who are going to this law school, you will have many, many opportunities. But what about the girl who has had, who has been under-educated who drops out of school when she is teenaged and pregnant. Helping to raise the level of all women. I think it's something that wasn't too concerned about.
Stone:
We have time for one more question.
Audience:
Thank you.
Audience:
Last question. All right. I know almost nothing about this, but one of my most fundamental misunderstandings is why doesn't the right to bodily self determination and the right to privacy, even if it involves a third person or second person like a doctor, why doesn't that extend to things like kidney sales and prostitution? Isn't that the same way of using your body?
Ginsburg:
The question is whether the state can regulate conduct that may be harmful to oneself or others. And I, I think the answer to that is yes, that they can protect you from harming yourself. Okay.
Stone:
So, um, many of you probably came here thinking that you're going to hear a rousing defense of Roe v. Wade. And what you heard instead was a much more nuanced, careful, thoughtful, judicious analysis of a legal, constitutional, institutional question. Um, and it's that that really makes Justice Ginsburg special and great as a justice, um, that she's not ideologically reflexive. Um, she's not knee jerk and predictable in the way you might think. Um, and this is really what makes for a great, great judge and a great justice and, and we're very fortunate Justice Ginsburg to have you here with us today.
Schill:
[applause] Geoff. Geoff, I'd like to thank you so much for leading our discussion today, it was very interesting and Justice Ginsburg, thank you so much for coming here today and for, as Geoff said, really um, lead answering questions in both a very honest and very thoughtful way and also one that makes us think about constitutional law in the institution of the court as well as the Roe case and the cases leading up to Roe. Now in our, we would like to give you a token of our appreciation and affection and of course in Chicago tradition that will come in the form of a book. So I'd like to give you a, a book, uh, and we know that you have a great interest in feminism obviously, and so we are going to give you, today is a first edition of Margaret Sanger's classic 1927 work, What Every Boy and Girl Should Know. We hope that you enjoy it.
Audience:
[applause]
Schill:
And I'd like to thank the audience for being here. I'd like to also thank the Center for the Study of Gender and Sexuality and the Institute of Politics for cosponsoring this event today. And I would like to encourage all of you to make your way out of this room and head towards the Green Lounge where we'll have a reception and please join me once again in thanking Justice Ginsburg
Audience:
[applause]
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.