The Pregnant Captain, the Notorious REG, and the Vision of RBG: The Story of Struck v. Secretary of Defense

Document Type

Book Section

Publication Date

2019

ISBN

9781683289920

Abstract

This chapter tells the story of an unfamiliar case that ought to be widely known. It is about a woman, Captain Susan Struck, whose pregnancy and religious refusal to have an abortion subjected her to automatic discharge from the Air Force. The story is worth telling for at least three reasons. First, the plight of the pregnant captain at its center deserves to be honored by collective memory. Second, the story reveals a great deal about the vision of gender equality possessed by her advocate before the Supreme Court: Ruth Bader Ginsburg. Ginsburg briefed that 1972 case, Struck v. Secretary of Defense, in anticipation of a Supreme Court argument that she was to have given. Before oral argument could occur, however, the federal government waived Captain Struck’s discharge and abandoned its policy of automatically discharging women for pregnancy, thereby mooting the case and avoiding a Supreme Court opinion. Third, and most importantly, the story illuminates how the Constitution speaks to gender equality today. In Struck, Ginsburg underscored the vital links between pregnancy discrimination and sex discrimination, and between sex discrimination and restrictions on access to contraception and abortion, at a time when the Justices did not understand the relationships among those practices. The brief came at a very early point in the rise of the constitutional sex discrimination tradition—just after the Court had held for the first time in American history that a sex classification violated the Equal Protection Clause. Only by registering where constitutional law was and where it would imminently head when Ginsburg litigated Struck can one entirely grasp the profound importance, boldness, and insightfulness of Ginsburg’s brief—and the implications of the Court’s subsequently proceeding to neglect its message. In more recent decades, the Court has—to a significant, albeit incomplete, extent—gained an appreciation of the relationships among the practices that Ginsburg identified. And Ginsburg the Justice, in speaking for the Court, has brought a Struckian perspective to bear in her interpretation of the intermediate scrutiny standard for sex classifications. Given recent changes in the composition of the Court, however, the future remains deeply uncertain.

First Page

33

Last Page

52

Num Pages

20

Publisher

Foundation Press

Editor

Melissa Murray, Katherine Shaw, & Reva B. Siegel

Book Title

Reproductive Rights and Justice Stories

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