Was Justice Ginsburg right?
24 April 2023
Is it better to force a solution to “solve” a problem quickly or to let people gradually figure it out themselves, albeit over a longer period of time? As a business owner, I try not to dictate results because it may generate resentment among my staff which may undermine not only this decision but other issues. If it is necessary to force a decision, I prefer making a small one and hoping my staff will eventually move in that direction. Of course, if I am wrong about the decision, this also allows me to change more easily.
Similarly, the late Justice Ruth Bader Ginsburg thought Roe vs. Wade was the wrong case to settle the abortion issue. Roe was a decision by fiat, invalidating dozens of state antiabortion rights laws. As Justice Ginsburg indicated, the Roe decision interrupted the gradual relaxation of abortion bans on a state-by-state basis which would have advanced the democratic process. “Doctrinal limbs too swiftly shaped,” she said, “may prove unstable.” The Roe decision seemed to have “stopped the momentum on the side of change.” Making this change too far, too fast, gave “opponents a target to aim at relentlessly.” which they succeeded at 50 years later.
Justice Ginsburg in 1993 at US Supreme Court, source: New York Times
Ginsburg criticized the 7 to 2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion.
After the Dobbs v. Jackson Women's Health Organization decision overturning Roe, we are now returning somewhat to the pre-Roe situation of 1973, but with a hardened attitude by the antiabortion rights movement.
The antiabortion rights states are enacting draconian measures much more severe than existed in 1973, including:
Proposing fertilized egg personhood laws; i.e. legislating that all the legal rights of babies born alive can be given to a fertilized egg, which affects miscarriages and IVF (in vitro fertilization).
Proposing to increase the penalties for abortions to life imprisonment or the death penalty for patients and essentially declaring war against physicians.
Establishing abortion trafficking laws for those helping a minor obtain abortion care without parental permission in another state.
Prohibiting medical providers from referring women across state lines to access abortion services or prescribing abortion pills to pick up across state lines.
Allowing private citizens to sue abortion providers and those who assist patients in getting abortions.
Making even legal abortions more difficult to obtain by enacting burdensome conditions, such as prohibiting outpatient abortion centers.
Changing rules for ballot initiatives (undoing democracy) to limit abortion.
In states where abortion is legal, having local governments adopt antiabortion rights legislation.
Attempting to restrict birth control.
Punishing state attorneys that decline to prosecute abortion cases.
These actual and proposed laws have created a climate of fear among healthcare providers and patients, making it more difficult for women and girls to get abortions today than in the past, even if legal.
Due to these laws, I believe physicians, women of reproductive age and businesses will migrate from antiabortion rights (red) states to blue states. To date, there is evidence that:
OB/GYNs are reluctant to work in antiabortion rights states and some are leaving.
In the 2023 physician residency match, antiabortion rights states showed a decline in applications for OB/GYN and Emergency medicine residencies, see also the AAMC report.
Many college students would prefer to attend a university in a state with greater access to reproductive health services.
Businesses have indicated that restrictive abortion laws will cause them to move employees to other states.
If these trends continue in antiabortion rights states, it may still take years to decades for the public and political leaders to acknowledge that this migration and brain drain is actually happening and to pass new laws. Even if they do so, physicians, other residents and businesses who have left may not return quickly or at all.
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