--- title: What Ruth Bader Ginsburg Said About Abortion and Roe v. Wade description: When the late Ginsburg was confirmed to the Supreme Court, she explained why she supported abortion rights but had issues with 'Roe.' canonical: https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/ author: Olivia B. Waxman article:opinion: false article:content_tier: free article:published_time: 2018-08-02T15:00:41.000Z article:modified_time: 2024-01-24T11:29:40.000Z article:section: History og:title: Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of 'Roe v. Wade' og:description: When Ginsburg was confirmed to the Supreme Court 25 years ago, she explained why og:url: https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltc936a69a609ad599/698936c3457a52aba4d5f012/ruth-bader-ginsburg-clinton.jpg?branch=production&width=3840&quality=75&auto=webp&crop=16:9 og:image:width: 1200 og:image:height: 675 og:image:alt: ruth-bader-ginsburg-clinton og:type: article twitter:card: summary_large_image twitter:title: Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of 'Roe v. Wade' twitter:description: When Ginsburg was confirmed to the Supreme Court 25 years ago, she explained why twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltc936a69a609ad599/698936c3457a52aba4d5f012/ruth-bader-ginsburg-clinton.jpg?branch=production&width=3840&quality=75&auto=webp&crop=16:9 ---  # Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of _Roe v. Wade_ ## Video: What’s Next for Supreme Court Nominee, Brett Kavanaugh? [Watch (HLS stream): What’s Next for Supreme Court Nominee, Brett Kavanaugh?](https://cdn.jwplayer.com/manifests/stbeNPkC.m3u8) (3:35)  _Published 2018-07-11. Confirmation battle begins over Trump’s nominee._  by [Olivia B. Waxman](https://time.com/author/olivia-b-waxman/)  ## Olivia B. Waxman Staff Writer Updated: Jan 24, 2024 11:29 AM UTCPublished: Aug 2, 2018 3:00 PM UTC  Judge Ruth Bader Ginsburg appears with President Bill Clinton in the White House Rose Garden in Washington, D.C., on Aug. 2, 1993, after the Senate voted 96-3 to confirm her as the nation's 107th Supreme Court justice. Judge Ruth Bader Ginsburg appears with President Bill Clinton in the White House Rose Garden in Washington, D.C., on Aug. 2, 1993, after the Senate voted 96-3 to confirm her as the nation's 107th Supreme Court justice.Ron Edmonds/AP—Shutterstock  by [Olivia B. Waxman](https://time.com/author/olivia-b-waxman/)  ## Olivia B. Waxman Staff Writer Updated: Jan 24, 2024 11:29 AM UTCPublished: Aug 2, 2018 3:00 PM UTC _Editor’s Note: This story, originally published in 2018, explores Ruth Bader Ginsberg’s views on abortion rights and_ Struck v. Secretary of Defense_—the case that the late Supreme Court Justice argued that she wished legalized abortion, instead of_ Roe v. Wade_. On June 24, 2022, the U.S. Supreme Court ruled 6-3 to overturn_ Roe v. Wade_._ When the U.S. Senate [confirmed](https://www.senate.gov/legislative/LIS/roll%5Fcall%5Flists/roll%5Fcall%5Fvote%5Fcfm.cfm?congress=103&session=1&vote=00232) President Bill Clinton’s nomination of Ruth Bader Ginsburg to the U.S. Supreme Court by a 96-3 vote on Aug. 3, 1993 — precisely 25 years ago Friday — that decision set Ginsburg on the path to [legal](http://time.com/5352530/ruth-bader-ginsburg-five-years-supreme-court/) (and [viral](http://time.com/3523180/ruth-bader-ginsburg-rbg-shirts/)) history. That process was also noteworthy for her decision to take “the unprecedented step of strongly endorsing abortion rights” in a Supreme Court confirmation hearing, as TIME [reported](http://time.com/vault/issue/1993-08-02/page/14/) back then. “It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling,” Ginsburg [told](https://books.google.com/books?id=1DqqfXw5I-0C&pg=PA396&lpg=PA396&dq=%22It+is+essential+to+woman%27s+equality+with+man+that+she+be+the+decisionmaker%22&source=bl&ots=jEfCR3WwNa&sig=SjLBWaTOiz-m2hOGUDFUg7Uh18A&hl=en&sa=X&ved=2ahUKEwiB1eGkmczcAhUh4oMKHeHdAEkQ6AEwAHoECAIQAQ#v=onepage&q=%22It%20is%20essential%20to%20woman%27s%20equality%20with%20man%20that%20she%20be%20the%20decisionmaker%22&f=false) Senators during her four days of questioning by the Senate Judiciary Committee. “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.” **Read More:** [_What the Supreme Court’s Abortion Decision Means for Your State_](https://time.com/6190283/abortion-access-in-my-state-supreme-court/) Today, the idea that a judge’s views on abortion rights might be [determining factor](http://time.com/5329594/democrats-targeting-collins-and-murkowski-abortion/) for his or her suitability for a seat on the Supreme Court is unsurprising. In particular, the [landmark 1973 case](http://time.com/5325124/justice-anthony-kennedy-supreme-court-roe-v-wade-overturned/) _Roe v. Wade_ is frequently referred to as a “[litmus test](https://www.npr.org/2018/07/01/625100343/trump-downplays-roe-v-wade-litmus-test-as-he-considers-a-supreme-court-nominee)” for a justice. So it might come as a surprise that, though she made history by endorsing abortion rights during her confirmation hearing, Ginsburg had well-known reservations about _Roe_. Her views on abortion came up during her confirmation hearings in part due to a [lecture](http://www.law.nyu.edu/sites/default/files/ECM%5FPRO%5F059254.pdf) she’d given earlier that year at New York University School of Law, in which she discussed the topic. At one point during her talk, she critiqued the Court for the structure of its decision in _Roe v. Wade_: --- > “” --- Kate Michelman, then president of the National Abortion Rights Action League, [called on](https://www.washingtonpost.com/archive/politics/1993/06/15/judge-ruth-ginsburg-named-to-high-court/e09bd5db-8f1c-4404-86ba-9d2e754932fb/?utm%5Fterm=.3d27fdc1c5bf) the Senators to determine “whether Judge Ginsburg will protect a woman’s fundamental right to privacy, including the right to choose, under a strict scrutiny standard.” The questioning was strong enough that Ginsburg’s husband [Marty Ginsburg](http://time.com/5247283/ruth-bader-ginsburg-rbg/), one of the fiercest advocates for her judicial career, got academics to call the White House and clarify that she was talking about the Court’s thinking in 1973, not the ultimate decision. When Sen. Hank Brown (R-CO) asked about her remarks during her confirmation hearing, she clarified her stance: “Abortion prohibition by the State, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred.” Ginsburg said that she believed it would have been easier for the public to understand why the Constitution protected abortion rights if the matter had been framed as one of equal protection rather than privacy. And in fact, there was a specific case she had in mind as one that should have driven the national conversation, instead of letting _Roe_ carry that weight. She told the Senators that she “first thought long and hard” about abortion rights when, as a lawyer for the American Civil Liberties Union (ACLU), she took on _Struck v. Secretary of Defense, a_ case that was on the Supreme Court’s calendar during the same term that _Roe_ was decided. Susan Struck was an Air Force Captain who got pregnant while serving in Vietnam and sued the Air Force after it said she would have to either get an abortion at the base hospital or leave if she wanted to have the child. She told the Air Force that she didn’t want to get an abortion; she wanted to use the vacation days that she had saved up to give birth and then put the baby up for adoption because abortion violated her Roman Catholic faith. Here’s how Ginsburg explained her approach — that sex discrimination includes discrimination because of pregnancy — to the Senate Judiciary Committee: --- > “” --- Struck lost in the lower courts, and the Supreme Court agreed on Oct. 24, 1972, that the case should be heard — but that never happened, because the Air Force waived Struck’s discharge and allowed her to remain in the service before that date rolled around. (As Ginsburg told law students in a summer program in July 2008, according to the 2016 edited collection of her remarks and writings [_My Own Words_](https://www.amazon.com/gp/product/1501145258/ref=as%5Fli%5Fqf%5Fasin%5Fil%5Ftl?ie=UTF8&tag=time037-20&creative=9325&linkCode=as2&creativeASIN=1501145258&linkId=724091ce080ee5b7bd58e8afe96bcb70)_,_ Solicitor General Erwin Griswold had recommended that course of action for the Air Force because he thought the government could potentially lose the case.) The _Roe_ [decision](http://time.com/3669867/roe-v-wade-history/) came out three months later. Ginsburg has described calling Capt. Struck in December of 1972 to see if she had been denied anything else because she was a woman, “hoping to keep the case alive.” Struck told her she would have liked to become a pilot but the Air Force didn’t let women become pilots. “We laughed, agreeing it was hopeless to attack that occupational exclusion then,” Ginsburg [recalled](https://books.google.com/books/about/My%5FOwn%5FWords.html?id=nXsmDQAAQBAJ&printsec=frontcover&source=kp%5Fread%5Fbutton#v=onepage&q=hopeless&f=false). “Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men. That is one measure of what the 1970s litigation/legislation/public education efforts in the United States helped to achieve.” Despite her impassioned response on the matter of abortion, Ginsburg’s confirmation hearings are also known for setting the precedent of the so-called [“Ginsburg rule,”](https://www.washingtonpost.com/opinions/answer-the-senates-questions-judge/2018/07/09/31cfb24c-83b0-11e8-8589-5bb6b89e3772%5Fstory.html?utm%5Fterm=.422ba6579226) which refers to her refusal to comment on some pending cases or cases that could come before the court. Ironically, as President Trump’s Supreme Court nominee Brett Kavanaugh faces the process Ginsburg endured 25 years ago, some experts [predict](https://www.nytimes.com/2018/07/10/opinion/abortion-kavanaugh-senate-hearing.html) that he will rely on the Ginsburg rule to get out of answering questions about his views on just the very subject on which she spoke so memorably. ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/"},"headline":"Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of Roe v. Wade","datePublished":"2018-08-02T15:00:41.000Z","dateModified":"2024-01-24T11:29:40.000Z","description":"She explained why during her confirmation hearing. 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