Ruth Bader Ginsburg’s alternative abortion history

by Irin Carmon

Last Friday, some of the most distinguished scholars and litigants working on gender and the law gathered to honor a foremother and inspiration, Ruth Bader Ginsburg, as Columbia University Law School marked the 40th anniversary of Ginsburg becoming the first tenured female professor there.

But there was another 40th anniversary as well, one less-known, but very much on Ginsburg’s mind. It has been 40 years since she filed a brief before the Supreme Court for a case she wishes had established the abortion right instead of Roe v. Wade.

That was the case of Capt. Susan Struck, who had become pregnant in 1970. The Air Force demanded she either terminate the pregnancy — abortions were being conducted on bases back then — or leave her post. Struck, a Catholic, said she wouldn’t have an abortion but would put the child up to adoption without taking off any unusual amount of medical leave. Though she lost both at the district court and the circuit-court level, she appealed to the Supreme Court, which agreed to hear her case until Solicitor General Erwin Griswold persuaded the Air Force to simply waive her discharge and change the rule. Ginsburg was disappointed.

“I thought if Susan’s case came first,” she said — before Roe, which would be heard a year later — it would be preferable for the goals of women’s equality, because “her choice was birth. Solicitor General Griswold saw to it that we did not have that opportunity.” (This was the same Griswold who, as dean of Harvard Law School, asked the rare women in Ginsburg’s class how they justified taking spots that should have gone to men. Ginsburg later transferred to Columbia Law School.)

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Read article: Struck By Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination

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