The Supreme Court probably wouldn’t have the votes to overturn the right to abortion in Roe v. Wade, as a leaked draft opinion proposes, if Justice Ruth Bader Ginsburg were still on the court. But Ginsburg was not a fan of the reasoning behind the 1973 ruling.
Ginsburg, who died in 2020, 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, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.
