How Ruth Bader Ginsburg Helped End the Military's Policy of Forced Abortion

Before 1970, women serving in the military were discharged for becoming mothers. This meant that pregnant women in uniform were forced to make a choice: Leave the military to become mothers or risk an illegal (and then-dangerous) abortion.

Air Force Capt. Susan Struck, a nurse serving in Vietnam, fought the rule. Her attorney in the case was Ruth Bader Ginsburg. Although the Supreme Court ultimately declined to hear Struck v. Secretary of Defense, Ginsburg's legal wrangling led to the Air Force's decision to reverse its policy.

Struck's pregnancy resulted in her being transferred to a base in Washington, one of the few states where abortion was legal in 1970. In writing the facts of the case, Neil Siegel of Duke University's School of Law notes that Struck intended to give the child up for adoption and had 60 days of accrued leave for recovery time. Despite this, a disposition board gave her a choice: Have an abortion on base or leave the military.

The career officer was a devout Catholic, and her religious views would not allow for an abortion. Nor was she going to accept the end of her military career. Struck instead sued the Department of Defense over its policy; the American Civil Liberties Union sent her representation -- a future member of the U.S. Supreme Court.

Ginsburg won a stay for Struck's discharge, arguing that the only conspicuous difference between men and women was that "only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, ... you would be denying her equal treatment under the law."

She also argued that no other temporarily disabling physical conditions (such as a broken bone) resulted in a military discharge and that male officers were not discharged upon becoming parents. These were violations of Struck's constitutional rights of equal protection, right to privacy and her free exercise of religion, Ginsburg said.

Both the district court and the 9th Circuit Court of Appeals found these arguments "constitutionally irrelevant." When the Supreme Court agreed to hear the case, the solicitor general of the United States, Erwin Griswold, convinced the Air Force to abandon the policy. When it did so, the court dropped the case and remanded it to the Ninth Circuit Court.

The Struck case has gone largely unremembered by history, because the Supreme Court never heard oral arguments. Three years later, the case was overshadowed by a much larger case with far-reaching consequences, Roe v. Wade.

Later, as a Supreme Court justice, Ginsburg would often remark that she wished Struck had been the first reproductive rights case the Supreme Court heard, rather than Roe v. Wade. The Roe case legalized abortion procedures, based on the due process clause of the 14th Amendment. A decision in Struck would have provided for reproductive rights, based on the Air Force officer's rights to equal protection under the law, her right to privacy and her right to free exercise of religion.

-- Blake Stilwell can be reached at blake.stilwell@military.com. He can also be found on Twitter @blakestilwell or on Facebook.

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