Roe v. Wade is seen as a landmark decision which made choice possible for women in the United States. Yet 40 years after its inception, it’s as difficult as ever for many women to procure access to safe and legal abortion. While Roe v. Wade did more than any other court decision or piece of legislation to legalize abortion, it also spawned a backlash that has continued to see success decades after the decision was made. A flaw in the decision is what has ultimately helped to undermine it.
What was Roe’s primary flaw? In order to answer that question, we turn to a somewhat surprising source: Ruth Bader Ginsburg.
During a talk last year at the University of Chicago Law School, Ginsburg stated that she felt that Roe was ultimately a faulty decision.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said during her lecture, “It’s about the doctor’s freedom to practice.”
That was the basis of the Roe v. Wade decision: the right of doctors to practice, not the right of women to have access to basic reproductive healthcare.
Roe, Ginsburg explained, should never have been restricted to the realm of privacy or a physician’s right to practice. Roe should represent so much more. It should represent a basic right afforded to all women regardless of location or socioeconomic background. Instead, according to Ginsburg, if Roe were to be overturned, its primary impact would be on low-income communities. Wealthy women would likely have somewhere in the United States they could travel where choice would still be available. But there are countless women who would be left out in the cold, without the funds or the necessary travel time to access care, if abortion was outlawed. And even with Roe v. Wade settled law, women are losing access in abortion-hostile states.
Moreover, one key anti-abortion argument of our opponents goes back to the rights of physicians. Anti-choice activists argue that physicians have a right to refuse to provide access to abortion for others under the guise of “religious liberty.”
Does this flaw mean we abandon Roe v. Wade? Of course not. But preserving Roe v. Wade isn’t enough on its own to protect access – it may need to be expanded in a way that fixes its primary flaw.
As anti-choice politicians seem to incite a new backlash against their stances on a daily basis, the best thing our calm and collected pro-choice activists have done is to continue to assert facts in response, to continue to expose the hypocrisy and the exaggeration of anti-choice activists, and to showcase the horrific consequences that cutting off access to choice has on low-income communities and communities of color.
When it comes to Roe, we can do even more by following Ginsburg’s lead and framing the debate as one about the most basic of rights for women. It would take years to fully back up and expand Roe in a way that focuses on women’s rights and nothing else, but it’s a critical battle. Because it will make Roe more difficult to undermine, and, most importantly, it clarifies what’s at the heart of Roe: women’s rights.