In remarks at a recent symposium, U.S. Supreme Court Justice Ruth Bader Ginsburg identified what she called her “dream case” on reproductive choice. It wasn’t Roe v. Wade, she said, but another case that might have better advanced the justices’ understanding of what choice really means. The 1971 case was about a woman who was discharged from the Air Force for refusing to have an abortion. Captain Susan Struck’s appeal was accepted by the U.S. Supreme Court, but the Air Force waived the policy and rendered the case moot before arguments were heard. She explains:
Susan Struck was told by her commanding officer you have a choice: you can get an abortion or you can leave the service, because pregnancy was an automatic ground for discharge. Susan Struck said, I am Catholic. I will not have an abortion. But I will use only my accumulated leave time, I have made arrangements for adoption of the child. Nonetheless, her choice was, you get an abortion or you get out.
That’s the reproductive choice case I wish had come to the Supreme Court first. Because what it was about was a woman’s decision about her life’s course. Would she bear the child or not? And perhaps the court’s understanding of the issue would have been advanced if a woman took the position: I don’t want the government to dictate my choice.
Now, a new case reveals that not much has changed in the ensuing 40 years. A week after Ginsburg’s remarks, news broke of another woman who is challenging her discharge from the Air Force in 2012, for enlisting while pregnant and unmarried. Had she had an abortion or given the child up for adoption, officials said, she would not have been discharged.
There are some differences between the 1971 scenario and Rebecca Edmonds’ 2012 case. The plaintiff then, Susan Struck, had volunteered to give her child up for adoption and was told that was not an acceptable option, while Edmonds would have been able to serve if she had given up her child. And the 1971 rule discharged all pregnant officers from the military, whereas Edmonds would have been entitled to stay if she were married, even though Edmonds had a plan for the care of her child by the child’s father and grandparents.
In Edmonds’ case, the Air Force contends that the reason for her dismissal was fraud, because she didn’t report her change in medical condition when she became pregnant. But in a letter to Edmonds’ lawyer, Col. Kelly L. Goggins said that even if she had reported the change, she would have been placed on medical recheck, and would have only been able to commission “if she were not a single parent, for example, if she were married, or had given up the child for adoption.” In a separate conversation with an officer, Edmonds said she was told that she would have been able to serve if she had aborted the pregnancy.
Differences aside, both women were prohibited from both keeping their children and serving in the military, a choice that runs counter to the constitutional privacy interests that were the basis for Roe v. Wade. As Justice Ginsburg points out in her remarks, opportunities for women have in some ways improved dramatically since Struck’s case. At the time, Struck revealed to Ginsburg that she aspired to become a pilot, a dream both women knew then was entirely unrealistic. Now, a woman could fulfill that dream — but only if she weren’t a single parent.
[h/t to On the Edges of Science and Law for flagging Justice Ginsburg’s comments]