Supreme Court Justice Robert Jackson famously quipped: “We are not final because we are infallible, we are infallible because we are final.”
The ACLU decided that a statement by the late Justice Ruth Bader Ginsburg on women’s rights wasn’t sufficiently enlightened. So they deemed it not truly final, and proceeded to change it to make it more infallible.
In her 1993 Senate confirmation hearings, the future Justice stated: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity.… When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
In 2021, on the anniversary of her death, the ACLU tweeted this modified version, attributing it to her:
All references to women and to female pronouns had been erased, replaced with gender neutral terminology.
Conservative media outlets, though hardly fans of Ginsburg, were suddenly outraged that anyone would mess around with her legacy. The National Review denounced the ACLU for “censorship.” Fox News accused the organization of “erasing women.” Breitbart deemed it a “neo-Marxist rejection of sexual dimorphism,” engendering (pardon the pun) heavy internet traffic on the dictionary.com website.
These critics also noted the ACLU’s action was part of a trend toward changing our vocabulary of procreation. They cited such examples as CDC Director Rochelle Walensky references last April to “pregnant persons” and “pregnant people,” and the 2022 White House budget’s replacement of “mothers” with “birthing people.” For some critics, the most ominous development was the appearance of the new “pregnant man” emoji.
The liberal reaction was, for the most part, silence. The incident received no coverage from CNN. The New York Times ignored it for a week, before publishing a sympathetic but mildly critical op-ed by Michelle Goldberg.
Meanwhile, the ACLU, facing a fierce Twitter-storm reaction, added this parenthetical explanation to its website:
Justice Ginsburg wrote about women and women’s equality as she spoke about abortion. (At the time, there was not yet a broader awareness of the importance of abortion for transgender men and nonbinary people.)
Goldberg made a similar semi-apologetic point in her op-ed, noting:
No one that I’m aware of used gender-neutral language to talk about pregnancy and abortion in 1993; it wasn’t until 2008 that Thomas Beatie became famous as what headlines sometimes called the “First Pregnant Man.”
In other words, Ginsburg was entitled to a pass because, poor thing, she was a captive of her own unenlightened time. Unlike us, she just didn’t know any better.
There are many problems with this patronizing defense.
First, of course, Ruth Bader Ginsburg was not a captive of her time. Agree or disagree with her, the fact is that Ginsburg did not aim to tailor her viewpoints to fit the times; she aimed to tailor the times to fit her viewpoints.
Second, the timing argument just doesn’t work. Long after 2008 (when, Goldberg implies, gender-neutral language began to become obligatory), Ginsburg continued to see abortion as an equal protection issue affecting women, not people.
Though an ardent advocate of abortion rights, Ginsburg had long been critical of the reasoning and scope of the Supreme Court’s decision in Roe v. Wade. In 2013, during a visit to the University of Chicago Law School, she reiterated those criticisms. “Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s freedom to practice…. It wasn’t woman-centered, it was physician-centered.”
She made the same point concerning the Ninth Circuit’s decision in Struck v. Secretary of Defense, which involved a woman who had become pregnant while serving in the Air Force in Vietnam. The Air Force gave her two choices: terminate the pregnancy or leave. As a Catholic, Struck wanted to keep the baby. She also wanted to keep her job. Ginsburg prepared to argue her case before the Supreme Court but the Air Force changed its policy before the argument, rendering the case moot. Referring to Struck as a better test case than Roe v. Wade, Ginsburg told the University of Chicago audience: “I wish that would’ve been the first case. I think the Court would’ve better understood that this is about women’s choice.”
These remarks, made long after 2008, demonstrate that Ginsburg considered abortion a woman-centered, not person-centered, issue, based on the principle of equal protection. Essential to her reasoning was the fact that only women can become pregnant; accordingly, rules that subject women to disadvantageous treatment on the basis of their pregnancy deny them equal protection under the law.
The ACLU’s posthumous “correction” of Ginsburg’s statement to suit the times did not, strictly speaking, amount to “censorship” or “erasing women,” as conservative critics have asserted. It was something else, something more subtle but no less disturbing.
For the past few years, we have undergone a kind of cultural cleansing, as progressives have scanned history, identifying figures once revered but now deemed deserving of dethronement. Some, such as Confederate generals, were arguably suitable targets. But in time, this campaign of historical correction has exhausted the easy targets and moved on to less likely candidates: Abraham Lincoln, Ulysses Grant, Theodore Roosevelt, even Mahatma Gandhi. The campaign has developed a supply line problem: so few heroes, so many feet of clay.
The ACLU, well attuned to the campaigners’ mentality, understood that it was only a matter of time before Ginsburg herself became the object of condemnation for espousing women-oriented views, views that are unfairly and embarrassingly cisgender by current standards. The ACLU’s revision of one of Justice Ginsburg’s signature statements may be viewed, not as yet another example of the cancel culture at work, but rather as a kind of preemptive rescue mission, designed to protect her legacy from that same culture.
If so, the rescue mission was an embarrassing failure. Anthony Romero, the ACLU’s executive director, recently said that he regrets the tweet, and that in the future the organization will refrain from substantively altering anyone’s quotes.
But the problem will not go away so easily. The cancel culture campaign shows no signs of abating. We can expect more efforts – perhaps not as clumsy as this one – to rehabilitate icons by rewriting history before that same history is wielded as a weapon against them.