Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 20, 1993 TAG: 9306200240
SECTION: HORIZON PAGE: D-1 EDITION: METRO
SOURCE: By HARRIET CHIANG SAN FRANCISCO CHRONICLE
DATELINE: LENGTH: Long
Questions arose about Ginsburg's stand on abortion rights after President Clinton nominated her for the high court, but veterans of the abortion debate said that she has offered detailed strategies for protecting abortion rights over the past 20 years.
"I look forward to her hearing any abortion case," said Janet Benshoof, president of the New York-based Center for Reproductive Law and Policy, a national abortion rights group. "Her sensitivity to the reality of women's lives makes it ideal for her to hear."
Abortion is the one stumbling block in what is expected to be an otherwise smooth confirmation process for the federal appeals judge, who was nominated by Clinton to fill the vacancy created by the retirement of Justice Byron White.
A leading women's rights advocate in the 1970s and a moderate since her judicial appointment in 1980, Ginsburg was billed by the administration as as a supporter of abortion rights. But in some quarters, doubt arose over her criticism of Roe vs. Wade, the 1973 landmark ruling that established abortion rights.
Kate Michelman, president of the Washington D.C.-based National Abortion Rights Action League, called Ginsburg's public statements on abortion a "cause for concern."
She said her group looked forward to a "thorough" hearing before the Senate Judiciary Committee "to determine whether Ginsburg will protect a woman's fundamental right to privacy, including the right to choose, under a strict scrutiny standard."
But in her legal writings and speeches,and in a series of interviews with legal experts, Ginsburg emerges as solidly pro-choice. But she disagrees with the way the Supreme Court reached the result in its landmark 1973 decision in Roe vs. Wade.
Several experts said last week that Ginsburg would have based the abortion right on stronger legal grounds and perhaps diffused some of the bitter debate that has stretched over two decades.
Benshoof brushed off suggestions that Ginsburg is anything but solidly pro-choice. The objections are "bogus," she said.
As a Supreme Court justice, Ginsburg will "fortify the right" to abortion, taking a lead in clearing up the confusion created by the U.S. Supreme Court abortion ruling last June, Benshoof said. In that decision, the court allowed state restrictions on abortions as long as they did not impose an "undue burden" on a woman's right.
"She has the background and the capacity to look at the incredible mess this standard has produced and try to bring some clarity to it," Benshoof said.
Abortion rights opponents also are convinced that Ginsburg would be a strong pro-choice force on the court, pushing for stronger protections for women seeking to end their pregnancy.
"I believe she would uphold every kind of abortion license that comes before the court," said Paige Cunningham,president of Americans United for life, a public interest law firm that does research for the anti-abortion movement. "She would be a very strong advocate."
The confusion over Ginsburg's views on abortion arose from statements she made in a speech at New York University School of law in March. She stated then that it might have been better if the abortion question was cast as a sex discrimination issue. Instead, it was established as a privacy right in Roe vs. Wade, a legal strategy she said has led to confusion and years of litigation.
But in that same speech, she strongly implied that she supports federal financing of abortions. "They ought to take that as a clue," said Barbara Flagg, a constitutional law professor at Washington University in St. Louis and a former law clerk for Ginsburg.
Ginsburg's views are in contrast to the U.S. Supreme Court decision in 1976 that bars federal Medicaid funds for abortions except when the woman's life is endangered.
In taking on the legal reasoning of Roe vs. Wade, Ginsburg relied on a theme that she repeated in law articles.
She noted that by 1973, when Roe vs. Wade was decided, protection against sex discrimination was being firmly established as part of the equal protection clause of the U.S. Constitution. In a series of decisions, she said, the court had found that women and men deserved equal treatment under the law.
Instead of following that pattern, the court based abortion on the privacy right, which is not a right specifically stated in the U.S. Constitution.
The decision in Roe vs. Wade had an immediate nationwide impact, Ginsburg noted, bringing into question the legality of every state's criminal abortion law.
In keeping with her incremental,painstakingly thorough style, Ginsburg said she would have favored a less sweeping approach, establishing the abortion right on a step-by-step basis that would allow some give and take with the state legislatures.
Susan Appleton, a law professor at Washington University in St. Louis and an expert on reproductive rights, said that a number of other pro-choice academics have taken the same position as Ginsburg.
"I would look at it as someone who is looking for a more creative solution that supports the result," Appleton said, "not someone who wants to undermine it."
by CNB