On September 20 2020, two days after the death of Supreme Court Justice Ruth Bader Ginsburg, Facebook user Amber LeBeau shared a post claiming that Ginsburg had intervened on behalf of combat nurse Susan Struck, more broadly addressing the narrative around reproductive choice:
It’s disheartening to see the “Pro-life” response to Justice Ruth Bader Ginsburg’s death. It’s very clear that the folks who think RBG was a vehement “baby killer” have never heard of the name Susan Struck.
In the 1960s & 1970s, before Roe vs Wade, abortion was not only legal on US military bases, it was actively ENCOURAGED and basically mandated. Yes, really.
Captain Susan Struck was a combat nurse in Vietnam. When she got pregnant in 1970, the Air Force starkly gave her two choices. Get an abortion or be discharged. Struck wanted to keep her baby. So she was kicked out of the service.
When she got back to the US, Struck sued the US Government for putting women in such a horrible position that they had to choose between either not being able to serve their country or getting an abortion that they didn’t want.
Do you know which ACLU lawyer took her case and got the military to change their policy?
Ruth Bader Ginsburg
Ginsburg approached this case with the same tenacity she would later use to help Congress draft the Pregnancy Discrimination Act of 1978. In the dark days after Roe in 1973, it was perfectly legal for employers in many states to put women in the same situation that Struck was put in–“deal with your pregnancy” or suffer the consequences of a lost job, responsibilities or pay.
Ginsburg fought for the rights of women to choose life. She also fought for the rights of women to be able to work without discrimination, purchase homes, have bank accounts and a myriad of other things that make it easier for women in desperate situations to choose life in the first place.
Life is never as black & white or simple as it looks through a myopic lens. It’s never either/or. There’s always “ands” and “buts” to everything.
So before you paint Ginsburg as some satanic villain, at least acknowledge the many abortions that likely DIDN’T happen because of her tireless advocacy for women and families.
In her text-only post, LeBeau said that Ginsburg was often characterized as a “vehement” advocate for abortion rights, but that Ginsburg’s advocacy for reproductive rights in general extended well beyond the singular topic of abortion. She pointed to a case involving a woman, Susan Struck, being forced to choose between her pregnancy and her role in the Air Force in 1970.
However, the post did not include any citations for the story. Nevertheless, the post proved popular, and was shared over 20,000 times.
RBG and Susan Struck
In October 2014, Elle published a profile of Struck’s case, subtitled “When told to pick her job or her unborn baby, Susan Struck found herself a lawyer: Ruth Bader Ginsburg.”
That article noted that “compromises weren’t an option when Struck discovered that she was pregnant in 1970,”; the choices were either “resign” or “get an abortion”:
Air Force rules prohibited pregnant women and mothers from serving.Ruth Bader Ginsburg and Susan StruckRuth Bader Ginsburg and Susan Struck
Indeed, military bases were one of the few places abortions were legal in the U.S. at the time. But Struck was Catholic and objected to terminating her pregnancy; she was also single and objected to losing her job just as she was expecting a child. With the help of a young ACLU lawyer named Ruth Bader Ginsburg, Struck sued, arguing that she was a victim of gender discrimination, since male soldiers who got women pregnant or became fathers weren’t treated the same way, and that her Constitutional rights to liberty and personal choice were being violated. In 1972, the Supreme Court agreed to hear the case, at which point the Department of Defense—perhaps realizing they’d lose, or at least lose in the PR arena—retracted Struck’s discharge, effectively changing its policy and eliminating pregnancy as grounds for dismissal.
It was definitely a victory, but Ginsburg had hoped Struck’s case would be the one to establish all American women’s right to control their fertility. “I so much wanted the first reproductive-freedom case to be one where the choice [the plaintiff was making] was for birth,” Ginsburg says. “Roe v. Wade was as much about a doctor’s right to practice his profession as about a woman’s right.”
The resulting May 1972 case, Struck v. Secretary of Defense, is available here.
The same article noted that Struck managed to hide the fact she was pregnant for seven and a half months, but eventually “a supervisor ordered her to leave Vietnam within 48 hours.”
In December 2019, The Guardian profiled Struck’s case and reported that she originally planned to go through with an abortion. But then she had a dream which changed her mind and led to Ginsburg’s later involvement:
Air force rules then were as clear as they were coercive: face immediate discharge unless the pregnancy was terminated. Keep your job or keep the pregnancy.
So Struck went to bed resolute: she would take early R&R to terminate the pregnancy, probably in Japan. “The sooner the better,” she figured.
“But that night I had a dream,” recalled Struck, [in December 2019] aged 75, speaking in a joint interview with the Guardian and WNYC in the city of Sierra Vista, Arizona, some 50 years later.
She dreamed about the fetus, and being called “Mommy”, and the next morning she says: “I sat up in bed, and I said, ‘No way. No way are they going to do this. Susan Struck is not going to fall for this crap.’”
Her defiance against the air force would lead to a legal fight that could have become the signature abortion case taken up by the supreme court rather than 1973’s Roe v Wade – and in fact Ruth Bader Ginsburg, who would become Struck’s lawyer, thought it was a superior case.
That story elaborated on Ginsburg’s interest in Struck’s forced discharge during the Vietnam War:
[Struck’s] future attorney would become one of the best recognized names in American law – supreme court justice Ginsburg – who was heading the Women’s Rights Project at the time. Ginsberg believed Struck’s case was powerful because it showed reproductive rights are interconnected – if government could compel pregnancy, as many states limiting abortion access do today, it could also compel abortion.
“One thing that conspicuously distinguishes women from men is that only women become pregnant,” Ginsburg said at her confirmation hearings in 1993. “And if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.
“It was her right to decide either way, her right to decide whether or not to bear a child,” Ginsburg said. “In this case, it was her case for childbirth. The government was inhibiting that choice. It came at the price of remaining in the service.”
A September 21 2020 New York Times piece on Ginsburg and Roe v. Wade included comment by Mary Hartnett, a law professor at Georgetown University and a co-author of Ginsburg’s biography:
The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg.
Hartnett later addressed Struck’s legal battle, and Ginsburg’s overall view of contemporaneous debate on reproductive law:
Justice Ginsburg “believed it would have been better to approach it under the equal protection clause” because that would have made Roe v. Wade less vulnerable to attacks in the years after it was decided, Professor Hartnett said. She and her co-author on the biography, Professor Wendy Williams, spent the last 17 years interviewing Justice Ginsburg for the book and, though it initially didn’t have a release date, they are hoping to publish it some time next year, Professor Hartnett said in an interview.
During the same term that Roe v. Wade was decided, Justice Ginsburg was preparing to appear before the court, on the other side of the bench, as a lawyer at the American Civil Liberties Union representing Capt. Susan Struck.
In that case, Captain Struck, an Air Force nurse who was stationed in Vietnam, had become pregnant. She was given two choices: have an abortion or leave the military (before Roe, though abortion was prohibited in most states, it was allowed on military bases). When the Supreme Court agreed to hear the case, the Air Force, realizing it had a very real chance of losing, changed its policy and let Captain Struck have her child and keep her job and the court never heard the case.
An undated Military.com article published after Ginsburg’s death (“How Ruth Bader Ginsburg Helped End the Military’s Policy of Forced Abortion”) concluded:
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.
A popular September 20 2020 Facebook post asserted that Ruth Bader Ginsburg, in the aftermath of her death, left a legacy associated specifically with the right to abortion codified under Roe v. Wade. As the Facebook post described, Ginsburg was instrumental in Struck v. Secretary of Defense as well, successfully contesting Susan Struck’s automatic discharge and preserving her right to choose.