The claim: Before Roe v. Wade, Ruth Bader Ginsburg represented an Air Force captain in a reproductive rights case
“It’s disheartening to see the ‘Pro-life’ response to Justice Ruth Bader Ginsburg’s death,” Amber LeBeau posted to Facebook on Sept. 20. “It’s very clear that the folks who think RBG was a vehement ‘baby killer’ have never heard of the name Susan Struck.”
The post goes on to tell the story of Susan Struck, an Air Force captain who sued the secretary of Defense after she became pregnant and military policy forced her to get an abortion or resign.
“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,” the post concludes. It has been shared over 25,000 times.
Many comments expressing shock and disbelief of the unheard of, and seemingly unbelievable, story caught the attention of Facebook’s Third-Party Fact-Checking Program. However, the story is true.
Military policy required Struck to have an abortion or resign
Struck joined the Air Force active duty on April 8, 1967. She became pregnant while serving in Vietnam in 1970.
At the time, Air Force policy forced officers who became pregnant to either have an abortion or be discharged. When military leadership learned Struck was pregnant on Oct. 16, 1970, they recommended she be honorably discharged from the Air Force.
Struck was Roman Catholic and did not want to get an abortion. Instead, she arranged to place the child for adoption and use her leave for the pregnancy. But, she was dismissed and began a legal battle with the military.
Ginsburg argued the Air Force policy discriminated against women
Ginsburg, who was working with the American Civil Liberties Union at the time, represented Struck in her legal battle.
In Struck v. Secretary of Defense, Ginsburg argued that forcing pregnant women to have an abortion or leave the military was fundamentally discriminatory. According to Ginsburg, this policy unfairly placed upon women the burden of child-rearing, denied them equal opportunities and placed them second to men.
“Until very recent years, jurists have regarded any discrimination in the treatment of pregnant women and mothers as ‘benignly in their favor.’ But in fact, restrictive rules, and particularly discharge for pregnancy rules, operate as ‘built-in headwinds’ that drastically curtail women’s opportunities,” she wrote.
As Ginsburg prepared Struck’s case to be heard before the Supreme Court, the U.S. solicitor general, the Justice Department’s top lawyer at the high court, persuaded the Air Force to waive Struck’s discharge and change the pregnancy regulation. He filed a motion to dismiss the case as moot.
The Supreme Court never heard the case and decided Roe v. Wade soon after.
Ginsburg wished the high court had heard Struck’s case
Struck’s suit ”would have been my choice for the first reproductive freedom case to come before the U.S. Supreme Court,” Ginsburg said at a University of Chicago Law School event on May 11, 2013.
She questioned if the Supreme Court may have better understood reproductive access as a right to choice rather than a right to abortion if the first successful petitioner there had wanted to maintain a pregnancy.
“The idea of getting that to the court first was to say, ‘Government should stay out of this. Here’s Susan Struck. She wants to make the decision for birth, but the government is saying you do so at the cost of your job,’” explained Ginsburg.
Ginsburg questioned if the Supreme Court had ever made the connection of the shared theme of choice between Struck v. Secretary of Defense and Roe v. Wade.
“I wish that would have been the first case. I think the court would have better understood that this was a question about a woman’s choice,” she said.
Our ruling: True
In an early 1970s lawsuit regarding an Air Force captain who was discharged because she refused to have an abortion, Ruth Bader Ginsburg argued for a woman’s right to reproductive choice. Struck v. Secretary of Defense is relatively unknown because the Air Force changed the pregnancy policy rendering Struck’s suit moot before the case could be heard by the Supreme Court. We rate this claim TRUE, because it is supported by our research.
Our fact-check sources:
FindLaw, Feb. 16, 2012, “How Justice Ginsburg Struck Out in the Pro-Choice Movement”
Casetext, May 4, 1972, “Struck v. Secretary of Defense”
YouTube, University of Chicago Law School, June 5, 2013, “Justice Ruth Bader Ginsburg and Geoffrey Stone, ‘Roe at 40′”
ACLU, May 27, 2020, “The ACLU, Ruth Bader Ginsburg, And Me”
Neil S. Siegel and Reva B. Siegel, 2010, “STRUCK BY STEREOTYPE: RUTH BADER GINSBURG ON PREGNANCY DISCRIMINATION AS SEX DISCRIMINATION”
Legal Information Institute at Cornell Law School, Jan. 22, 1973, “Jane ROE, et al., Appellants, v. Henry WADE.”
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This article originally appeared on USA TODAY: Fact check: In ’70s, RBG fought for woman’s right to not have abortion