Ruth Bader Ginsburg Swipes Anthony Kennedy On Abortion


Justice Ruth Bader Ginsburg took a thinly veiled swipe at her colleague, Justice Anthony Kennedy, over a 2007 ruling against partial-birth abortion.

Her interview published Sunday in The New Republic with Jeffrey Rosen includes this exchange:

JR: And for dissents, your Gonzalez v. Carhart dissent is quite memorable.

RBG: That was in a partial-birth abortion case. And there what concerned me about the Court’s attitude, they were looking at the woman as not really an adult individual. The opinion said that the woman would live to regret her choice. That was not anything this Court should have thought or said. Adult women are able to make decisions about their own lives’ course no less than men are. So, yes, I thought in Carhart the Court was way out of line. It was a new form of “Big Brother must protect the woman against her own weakness and immature misjudgment.”

Kennedy was the author of that 5-4 ruling, which upheld the federal Partial-Birth Abortion Ban Act of 2003. In the opinion, he wrote that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

Interestingly, a law review article published in August 2014 found that Kennedy’s citation for that claim was sketchy. He based it on a friend-of-the-court brief which relied on the work of an anti-abortion advocate which has been discredited by authorities like the American Medical Association and the American Psychological Association.

As Ginsburg noted elsewhere in the interview, Kennedy was one of the three justices who co-wrote the controlling opinion upholding abortion rights in the 1992 Supreme Court case Planned Parenthood v. Casey.