Ginsburg Was Right: Abortion, Roe v. Wade, and Federalism

A common misconception we often hear from the Left is that “Donald Trump took away our right to abortion.”  But that is not accurate.  What Trump did was appoint judges to the Supreme Court.  Those judges, in turn, revisited and overturned what many legal scholars — on both the left and the right — have long considered a flawed decision: Roe v. Wade.

Ginsburg’s Warning

Ruth Bader Ginsburg, a lifelong supporter of abortion rights, was critical of the way Roe v. Wade was decided in 1973. Her objection was not to abortion itself, but to the Court’s reasoning and the sweeping scope of its ruling.

Ginsburg believed Roe went too far, too fast.  Instead of grounding the decision narrowly — for example, in issues of equality or specific medical circumstances — the Court declared a broad nationwide right to abortion based on a constitutional “right to privacy” under the Due Process Clause.  She feared that such a sweeping judicial fiat would short-circuit the democratic process, which was already moving state by state toward liberalizing abortion laws.

Ginsburg argued that a more durable legal foundation would have been to base abortion rights on the Equal Protection Clause of the 14th Amendment, framing the issue around women’s equality and self-determination.  That approach, she believed, would have been both stronger constitutionally and less divisive politically.  As she warned, when the Court resolves deeply contested social questions too broadly, it risks backlash and polarization, which is exactly what unfolded in the decades after Roe.

Europe vs. the United States

When discussing abortion rights is useful to compare America’s abortion laws with those of other Western democracies.  In countries like France, Spain, Italy, Germany, and Greece, abortion is generally available on request up to 10–14 weeks of pregnancy . After that point, it is permitted only under specific circumstances such as risk to the woman’s health or severe fetal abnormality.  Other European nations, like Sweden (18 weeks) and the United Kingdom and the Netherlands (24 weeks), allow longer windows, though with additional conditions.

The United States, by contrast, has no single national standard.  Under the Tenth Amendment (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people) abortion law is determined by individual states.  And today, twelve states ban abortion almost entirely, four restrict it at six weeks (before many women even know they are pregnant), and several more impose limits at 12–20 weeks.  Meanwhile, more than twenty states and the District of Columbia protect abortion rights up to viability (22–24 weeks), while Colorado, Oregon, and Washington impose no gestational limits at all.

Different Models, Different Outcomes

What is striking is that Europe often pairs early access with later restrictions, while the U.S. has taken a polarized path: some states ban nearly all abortions, others allow them with few if any procedural hurdles.  In fact, many European countries also require counseling, waiting periods, or multiple doctors’ approvals after the first trimester — safeguards that are absent in liberal U.S. states like California, New York, Colorado, and D.C.

This contrast highlights a deeper truth: Europe’s model is generally more moderate, while America’s approach reflects a wider range of laws, some more restrictive, others more permissive.

Federalism in Action

Europe comprises 44 countries, each with its own laws.  Meanwhile, the United States consists of 50 states plus the District of Columbia, each with lawmaking power under the Constitution. That, as our high school civics taught us, is federalism in practice — exactly as the Founders designed it.  To deny states the right to legislate according to the will of their citizens is to reject the fundamental principle that underpins our republic and the reason the Founders enshrined certain checks and balances into the Constitution.  If not, our democracy would quickly become two wolves and a lamb voting on what to have for dinner aka – “a tyranny of the majority.”

A Bipartisan Reminder

When discussing abortion, it is well worth recalling the words of President Bill Clinton, spoken two days after his inauguration in 1993:  “Abortion should be safe, legal, and rare.”