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Ginsburg's views on abortion ought to be questioned

Published Oct. 9, 2005

I accept that Senate confirmation of Judge Ruth Bader Ginsburg is a foregone conclusion. And of course I'm glad a second woman will soon grace the Supreme Court. But let's face it: Were Judge Ginsburg a man who voiced similar criticisms of Roe vs. Wade, he'd be "Borked."

Ginsburg's views, as expressed in public statements, on the constitutional right to an abortion are alarming. To spare her a rigorous examination of those views in a general celebration of her womanhood would promote the condescending sexism and stereotyping that Ginsburg herself has fought all her life.

The judge's notion that the broad sweep of the 1973 ruling unnecessarily pre-empted a political sorting out of the issues in state legislatures is stunning. It suggests that she does not think that a woman's access to an abortion is a fundamental right.

In lieu of Roe's immediate relief, Ginsburg would have preferred a gradual process whereby, state by state, legislatures passed somewhat less restrictive abortion laws and pregnant women challenged them in court. Eventually, she has said, society would have settled amicably on liberal pro-choice laws, since the political winds in 1973 seemed to be blowing that way.

Well, such incremental liberalism would be dandy if it were possible to be a little bit pregnant. But a woman who needs an abortion can't safely wait until the next election or legislative session or test case. And one woman's liberal abortion law usually turns out to be another's humiliation _ or catastrophe.

Believe me, I know. When I was young, I made a lot of mistakes. Two of the biggest ones were getting pregnant. When I was living in New York, abortion was wholly legal. But when I found myself pregnant the second time, I unfortunately was in California.

In February 1972, a challenge to California's abortion law _ regarded as one of the most liberal of that day _ was already moving through state courts. Nonetheless, to get a legal abortion I would have to demonstrate to the state's satisfaction that either my physical or mental health would be impaired gravely by giving birth.

Physically at my peak, I had no choice but to swear that having a baby would make me crazy. It was lucky that I'd studied acting. I gave it all I had. I cried. I shook. I wrung my hands. Even so, I didn't make much of an impression until my interrogator surprised me by asking, "What race is the father?"

"Black," I answered truthfully. Suddenly, the interview was over. That's how this single white woman got her legal abortion. Nine months later, California courts struck down that "therapeutic" abortion law on the grounds that it was too vague. The state Legislature was free to try again.

Without the Supreme Court's clear ruling in Roe vs. Wade in 1973, how long would it have been before women throughout the nation were assured access for an abortion when they actually needed one?

Perhaps Ginsburg's theory that all states' abortion laws eventually would be crafted to her liking by liberal politicians and judges would have been vindicated. But how many lives would have been ruined in the meantime?

Ginsburg's warm words for court decisions that return intimate reproductive decisions to the body politic raise troubling questions about her respect for the rights of individual bodies. But it is likely that the Senate Judiciary Committee, instead of vigorously pursuing those questions, will treat Ginsburg daintily, hoping to improve its image with feminists still sore about the treatment of Anita Hill. If so, it will be an insult to us all.

Ginsburg has a right to be treated as she has demanded all her life that a woman be treated: the same as a man.

And Americans have a right to know why she thinks a pregnant woman's access to abortion ought to wait upon a favorable political wind, just what kinds of restrictions on abortion she'd tolerate and whether her view of the law is so precious that she loses sight of individual suffering and liberty.

Kathleen Quinn, a former editor at the New York Times, is writing a novel.

New York Times News Service