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Examining Justice Ginsburg and Abortion as Health Care

President Obama wants to get health care reform accomplished by the first week of August. Although there are many substantial issues which are unclear, central to the debate is the role of abortion as a covered benefit. While the nation has been focusing on health care, Supreme Court Justice Ruth Bader Ginsburg recently gave readers of the New York Times Magazine a brief history lesson, taking us back to another era where abortion and health care were issue. In a July 12 article in the New York Times Magazine, Justice Ruth Bader Ginsburg said the following regarding Roe v. Wade, population control and indirectly, the relationship of abortion to health care. She was asked by writer Emily Bazelon to describe a feminist legal agenda:

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Except she wasn’t “altogether wrong” — at least she wasn’t wrong about the 1973 Roe v. Wade decision being “set up for Medicaid funding” and population control. Medicaid is the state-federal partnership which provides health care for long term elder care as well as the poorest among us. Medicaid was started in 1965, during the era when the term “population explosion” became part of public dialogue. For example, a September 13, 1971 Time Magazine article carried the headline: POPULATION EXPLOSION: IS MAN REALLY DOOMED? The article predicted a catastrophic future if nothing changed. Writer Otto Friedrich wrote:

Summing up the sentiments of many population experts, Stanford Biologist Paul Ehrlich (who has had himself sterilized) concludes that "if we don't do something dramatic about population and environment, and do it immediately, there is just no hope that civilization will persist..."

Still, there is a finite limit to the physical resources of the globe, which means, in turn, a limit to the number of people the world can support. But how many people is too many? At what point is the "optimum population" reached?

"We have already exceeded it, gentlemen; we have already exceeded it," says Dr. John H. Knowles, director of Massachusetts General Hospital. Dr. Ehrlich is more specific: he believes that the U.S. population should be about 25% less than at present. Stewart Udall, former Secretary of the Interior, goes even further. Without suggesting how it could be achieved, he favors a cut of about half.

But even if technology succeeds in providing both the food and raw materials to support a large population, some Americans worry about the probability of a basic deterioration in the affluent society that they have come to take for granted. "How will we house the next hundred million Americans?" asks President Nixon. "How will we educate and employ such a large number of people? How will we provide adequate health care when our population reaches 300 million?" Some birth-control enthusiasts want to answer with a barrage of coercive measures ranging from special taxes on any family with more than two children to sterility drugs in the public water supply.

The first step, already partly taken, is to prevent the birth of unwanted children. According to one major survey, at least one American child in five is unwanted. The obvious solution -making both contraceptives and abortion cheaper and more available-would reduce the birth rate to below the magic 2.1.

Even though President Nixon opposed abortion, he was concerned enough about population growth that he created the Rockefeller Commission Report on Population Growth and the American Future which reported findings in 1972. Incidentally, during the 1972 election, President Nixon publicly renounced the report. Reflecting the zeitgeist of the time, the Commission recommended that

…present state laws restricting abortion be liberalized along the lines of the New York statute, such abortion to be performed on request by duly licensed physicians under conditions of medical safety. In carrying out this policy, the Commission recommends:

That federal, state, and local governments make funds available to support abortion services in states with liberalized statutes.

That abortion be specifically included in comprehensive health insurance benefits, both public and private.

Sarah Weddington, co-counsel with her husband Ron Weddington, submitted the Rockefeller report as a part of her brief supporting Roe. Ron Weddington also advocated abortion as population control method. He wrote then President-elect Clinton in 1993 and advised the president-to-be that traditional Democratic programs would not be effective unless Clinton started “immediately to eliminate the barely educated, unhealthy, and poor segment of our country.” How could this be accomplished? He wrote to Clinton: "No I’m not advocating some kind of mass extinction of these unfortunate people. Crime, drugs and disease are already doing that. The problem is that their numbers are not only replaced but increased by the birth of millions of babies to people who cannot afford to have babies." Weddington noted that liberals don't often speak freely about such proposals in part because they seem ..."discriminatory, mean-spirited and well…so Republican." Nonetheless, what was Weddington's solution? "...vasectomies, tubal ligations and abortions…RU486 and conventional abortions."

So Justice Ginsburg was not altogether wrong in her understanding of one of the forces behind Roe v. Wade. However, where she was wrong was in her expectation that the High Court would strike down the Hyde Amendment which banned Medicaid funding of abortion. As noted in the New York Times interview, Ginsburg was not pleasantly surprised by the ruling upholding the ban. In fact, Ginsburg has been a consistent champion of tax-payer funding for abortions, even when she thought one purpose of Roe was to curb growth of “populations that we don’t want to have too many of.”

For Weddington such a policy seemed to be “discriminatory, mean-spirited and well…so Republican.” However, Ginsburg views public financing of abortion as a way to address gender discrimination. Which is it?

One thing seems sure. The issue of public abortion funding is deja vu all over again. In 1971, President Nixon asked: "How will we provide adequate health care when our population reaches 300 million?" In 2009, as of this writing, the United States population is at 306,928,177 and we are still debating it. And we are still debating abortion as an aspect of health care. Late last week, the Senate Health, Education, Labor and Pensions Committee rejected a bid by GOP Senators to eliminate abortion as a benefit in any government subsidized health reform package. As indicated by a recent letter from conservative Democrats demanding clear restriction on abortion as a part of government plan, abortion as health care may make or break the outcome. While population control had not been a major part of the public debate, Justice Ginsburg ominously raised it anew.

If abortion as a benefit survives, then any such provision will likely be challenged in the courts, possibly reaching the High Court. I believe I know how Justice Ginsburg will vote.


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