In History: How Ruth Bader Ginsburg foresaw the threat to abortion access in the US
Getty ImagesIn one of her final interviews, the Supreme Court justice and women's rights pioneer predicted that US abortion rights could be revoked and warned the poorest would pay the price.
"People should care about [Roe v Wade] the way they did when many women didn't have access, didn't have the right to choose," warned US Supreme Court Justice Ruth Bader Ginsburg in a BBC interview in 2019.
The pioneering lawyer and feminist icon was speaking to BBC journalist Razia Iqbal on stage in The New York Public Library, in what would prove to be one of her last interviews. She would die the following year at the age of 87.
Smartly dressed and diminutive, but noticeably frail after having survived several bouts of cancer, Ginsburg stressed that US women's reproductive rights were already under threat and implored Americans to be vigilant, especially to the country’s poorest women. Abortion remains a hugely contested issue in the US, with 2022 data from the Pew Research Center showing that 61% of Americans think abortion should be legal in all or most cases, while 37% think it should be illegal in all or most cases.
Ginsburg cautioned against the idea of thinking that the 1973 Roe v Wade ruling, which declared abortion was a constitutional right, was enough to guarantee women's reproductive freedom. Ginsburg was a lifelong staunch advocate for abortion rights and gender equality, but from her early days she had criticised the Supreme Court's handling of the abortion issue.
She believed that the Roe v Wade case had based the right to abortion on the wrong argument, a violation of a woman's privacy rather than on gender equality. This, she thought, left the ruling vulnerable to targeted legal attacks by anti-abortion activists.
Ginsburg felt that because the ruling had legalised abortion overnight nationwide, it had failed to resolve the issue. It had the effect of halting the political process that had been moving to liberalise abortion already – with advocates now believing that right was secure – and instead mobilised the anti-abortion movement.
"One of the things that happened after Roe v Wade is that women wanted women to be able to control their own destiny. They won, so they retreated. And the other side geared up and we have the situation that we have today," she told the BBC.
While the Roe v Wade ruling gave US women an absolute right to an abortion in the first three months (trimester) of pregnancy, it allowed for individual states to impose restrictions in the second trimester and to ban the procedure in the third. In the years that followed, anti-abortion rulings gradually began to chip away at access, and by the time Ginsburg was speaking, more restrictive abortion laws were already in effect in several states, while dozens more had proposed similar bills in their legislatures.
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"I think society needs to be more active on this issue, I mean the truth is with all these restrictive laws, the only people who are being restricted are poor women," she said.
"It's a little like divorce was in the old days, where if you had the money to go to Nevada and stay there for six weeks, you could get a divorce," she continued. "Now we have no-fault divorce in every state. So no woman of means will ever lack access to abortion in the US, because there are some states that will offer it," she said.
"So the brunt of all these restrictive laws is on poor women. Not only if they can't pay the plane fare or the bus fare – they can't afford to take days off from work to go."
In 2022, the Supreme Court was asked to rule on a Mississippi law that challenged Roe v Wade and on 24 June it said it had voted to overturn its 50-year-old decision, depriving tens of millions of women of the automatic right to abortion.
While pro-choice activists viewed the decision as an assault on human rights, anti-abortion campaigners celebrated a major victory.
In the years since, nearly two dozen US states – all controlled by Republicans, such as Alabama, Indiana and Louisiana – have banned or severely limited abortion. In Georgia, abortion is illegal after six weeks, which is before most women know they are pregnant.
Meanwhile many Democratic-controlled states, like New York, Maryland and California, have brought in additional protections to ensure reproductive rights.
The ruling has had ongoing political repercussions. The voter backlash to the abortion restrictions was cited as a big factor in curtailing Republican gains in the 2022 congressional midterm elections and helping secure victories for abortion rights advocates in conservative states such as Ohio, Kansas and Kentucky.
Since Ginsberg's interview in 2019, more women now are travelling for an abortion. Nearly 1 in 5 of those who had an abortion in the first half of 2023, totalling more than 92,000 people, travelled to another state, according to research published in December by the pro-reproductive rights Guttmacher Institute. That is double the number in 2020. Often, states with bans border each other; this means women are travelling further.
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Research has shown that, in the first half of 2023, states with abortion bans had an average fertility rate that was 2.3% higher than states where abortion was not restricted, leading to about 32,000 more births than expected. In those same states, since the Supreme Court decision, there have also been increases in the public desire to make access to abortion easier, according to data from the nonpartisan Pew Research Center.
And with a recent Gallup poll indicating that about 69% of US voters think that abortion should be legal throughout the first three months of pregnancy – the period when most abortions occur – the issue of reproductive rights and women's autonomy is likely to be an important factor in determining how people cast their vote in the upcoming US election in November.
Although Ginsburg, a prominent women's rights lawyer before she became a judge, worried about reproductive rights and civil liberties being eroded, she was optimistic about the ability of young women to shape a fairer society.
"The young people are my hope," she told the BBC. "Think of Malala Yousafzai, Greta Thunberg. I think the young people I see are fired up and they want our country to be what it should be.
"One of the things that make me an optimist are young people."
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