Struck v Sec of Defense
This case straddles both the issues of abortion and adoption. Story courtesy of LINK>Teri Kanefield. You can read the entire essay at that link.
Susan Struck joined the Air Force at the age of 23 in 1967. The recruiter warned her that she would be discharged if she got pregnant. She was sent to Vietnam. When Struck learned she was pregnant, her commanding officer gave her a choice: Get an abortion or leave the Air Force. At that time, abortion was legal in the armed services. Struck refused an abortion on the grounds that she was Catholic — although a lapsed Catholic. She wanted to give her child up for adoption and remain in the Air Force.
According to Air Force regulations, when an officer became pregnant, a board of officers was convened to hear the case. On October 6, 1970, Struck appeared before the board and asked if she could use her accumulated leave to have the baby, arrange for the adoption, and then return. The board refused her request. A few weeks later, on October 26, the secretary of the Air Force reviewed the findings of the board and ordered Struck to be discharged effective October 28, 1970.
With the help of the ACLU in Washington state, Struck took her case to court. Colonel Max B. Bralliar, commanding officer of the Minot Air Force Base, testified that Struck “demonstrated excellent ability in the performance of the managerial aspects of the work units and an excellent knowledge and application of nursing care principles,” and that she was highly dedicated with a “professionally correct and mature attitude.”
Meanwhile, Struck returned home to have her baby and arrange for the adoption. She gave birth to a girl, who she called L.B., which stood for “Little Baby-san” or, if she was in a different sort of mood, “Little Bastard.” She selected the adoptive parents, Julie and Art, who agreed to Struck’s terms: the baby would be raised Catholic, and Struck would be allowed to visit. On December 10, 1970, the adoption was finalized. Julie and Art named the baby Tanya Marie.
On June 4, 1971, the district court ruled against her, so she appealed to the U.S. Court of Appeals for the Ninth Circuit. Five months later, the Ninth Circuit affirmed the district court’s order. She filed a petition for rehearing, but was again denied. One of the judges dissented for two reasons: first, men with temporary periods of disability were not discharged, and second, he found it irrational that only the natural mother, not the natural father, was declared unfit for service after the birth of a child. With the dissent, the ruling was 2-1 against Struck.
Susan Struck wanted to take her case to the Supreme Court. Because Ginsburg was then the director of the ACLU’s newly-formed Women’s Rights Project, Struck’s case found its way to Ginsburg’s desk. Ginsburg thought Struck’s case was the perfect case to challenge abortion laws as unequal under the Fourteenth Amendment. The gender distinction in the Air Force policy made absolutely no sense. Once the baby was adopted and Struck was legally no longer a mother, there was no reason to deem her unfit for service.
Moreover, Struck’s case made two vital points: A woman should decide whether or not she would have an abortion, and abortion laws naturally discriminate on the basis of sex or gender. As Ginsburg said, nobody is for abortion. What people are for or against is a woman’s right to choose. For Ginsburg, the issue wasn’t about privacy. It was about autonomy. It was about a woman’s right to control her own life and her own body. Moreover, the facts would make the case unlikely to trigger a backlash.
Ginsburg planned to ask for a narrow ruling that would make the public aware of the issue without turning the abortion question into a hot political mess. To Ginsburg’s regret, as she was working on Struck’s case, another case–the case of Jane Roe–made it to the Supreme Court first. The 1973 Supreme Court decision in Roe v. Wade extended the right to privacy to the right to have access to an abortion.
Ginsburg believed the Court’s ruling was too broad. The sweeping decision caused the abortion laws of forty-six states that restricted abortions to be instantly rendered unconstitutional, even the most liberal of them. Ginsburg feared the decision would turn the issue into a political one, mobilizing the pro-life movement.