“I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.... In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”That is, she intuited the Court's motivation, which she says she was wrong about — as she observed in the old remark and repeats now — because the Supreme Court later, in 1980, upheld the political decision to exclude Medicaid funding for abortion, in Harris v. McRae. Ginsburg's 2009 quote was:
[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.These remarks conflate the Supreme Court and Congress. It could have been that concern about overpopulation motivated the Court in Roe, as it pushed back the states' power to ban abortion and put abortion in a relatively positive light as something women had a right to do. That created the political space within which Congress might have opted to fund abortions for poor women. All that happened in Harris v. McRae was acceptance of the political reality that did ensue, the decision not to pay for abortions. The Supreme Court failed to predict the political fallout from Roe. The Court could still, at the time of Roe, have believed that it was enabling Congress to undertake population-control policy. When Harris v. McRae arose, the Court had new information and a new question to answer. It declined to extend Roe to mean that Congress was obligated to fund abortions as part of Medicaid.
Bazelon blithely concludes:
The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later.The women's rights argument is presentable and defensible. Abortion for population control was and is too ugly — and too close to racism — for comfort. What is uncomfortable is suppressed. In that sense the denial is admirable. But Bazelon's instruction on the "history lesson" is too pat and too sanitized to be taken uncritically.