Body of Law: Beyond Roe
BROOKE GLADSTONE I'm Brooke Gladstone, and this week you'll hear about the court case that almost set the course for reproductive rights. It started with an Air Force captain who was pregnant.
CAPTAIN SUSAN STRUCK The regulations said if you're pregnant, you cannot be active duty. If you have a child, you cannot be active duty.
NEIL SIEGEL Mothers, unlike fathers, were deemed unfit to serve.
CAPTAIN SUSAN STRUCK No way, no way are they going to do this to Struck. Susan Struck is not going to fall for this crap.
JUSTICE RUTH BADER GINSBURG It would have been my choice for the first reproductive freedom case to come before the U.S. Supreme Court.
DAHLIA LITHWICK Wise, judicious men would be helping women make good decisions about what was best for them.
JESSICA GLENZA So should we stop talking about Roe versus Wade, then?
LORETTA ROSS Well, you don't pull your finger out the dike while you're building a better dam, you know?
BROOKE GLADSTONE From Susan Struck to Roe v. Wade and beyond after this.
From WNYC in New York, this is On the Media. Bob Garfield is out this week. I'm Brooke Gladstone. In March, the Supreme Court will hear a major case called June Medical Services, LLC v. Gee, about a Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital. The law would leave Louisiana with just one clinic. Three years ago, the court struck down an identical Texas law, but that was before Justices Gorsuch and Kavanaugh joined the bench. Now everything is different.
NEWS REPORT It's not just Alabama, Missouri, Georgia, Mississippi, Ohio, Kentucky... [END CLIP]
NEWS REPORT ...Ohio, Iowa. And they're all trying to go and bubble up to the Supreme Court and overturn Roe v. Wade. [END CLIP]
BROOKE GLADSTONE Last spring, nine state legislatures snuck in abortion bans of various lengths, all now under appeal. And just last month, Ohio lawmakers introduced a bill requiring doctors to reimplant an ectopic pregnancy, a medically impossible procedure or face murder charges. But we begin this week not with one urgent headline, but with decades of accumulation.
NEWS REPORT Good evening, in a landmark ruling, the Supreme Court today legalized abortion. [END CLIP]
NEWS REPORT This extraordinary event. January 22nd, 1973 will be a historic day. [END CLIP]
NEWS REPORT Obviously, it's a concern for all women, all women face the problem of forced childbearing-- [END CLIP]
BROOKE GLADSTONE A slow moving avalanche.
NEWS REPORT Twenty years ago, abortion may have seemed the easy way out for a society reeling from the collapse of a moral consensus. [END CLIP]
NEWS REPORT Yesterday, the Supreme Court said that Roe v. Wade was still alive, if substantially restricted. [END CLIP]
NEWS REPORT Roe v. Wade was a very bad decision. Barbara, I think it was a bad decision. [END CLIP]
NEWS REPORT As Mike Pence has said for decades, I want to put Roe v. Wade on the ash heap of history. And this is something I think Kavanaugh do. [END CLIP]
JUSTICE RUTH BADER GINSBURG What a great organizing tool it is. You have a name. You have a symbol. Roe v. Wade. You can aim at that. [END CLIP]
BROOKE GLADSTONE Justice Ruth Bader Ginsburg marking the rulings 40th anniversary at the University of Chicago in 2013.
JUSTICE GINSBURG How often has the name Roe v. Wade been the center of the opposition? That was my concern that the court had given the opponents of access to abortion a target to aim at relentlessly. [END CLIP]
BROOKE GLADSTONE The anti-abortion movement existed before 1973, RPG said, but it has come to be laser focused around a single goal overturning this one Supreme Court case and creating a post-Roe America
JUSTICE GINSBURG Roe seemed to stop the momentum, which was on the side of a change. Since then, momentum has been on the other side. The cases that we get now on abortion are all about restrictions on access to abortion and not about expanding the rights of the woman. [END CLIP]
BROOKE GLADSTONE Whether you find the case soothing or enraging, Roe v. Wade has been framing the discussion about abortion for nearly half a century. In fact, Roe has been the discussion about reproductive rights. The stand in for women's rights of all kinds, an emblem of the culture wars, a symbol of our fractured politics.
JUSTICE RUTH BADER GINSBURG There was another reproductive choice case before the court that term-- [END CLIP]
BROOKE GLADSTONE Justice Ginsburg warning us that we missed something big. What was it? What could we have talked about instead? And in this term or next, if the court watchers are right, what will we talk about after Roe? Our producer, Alana Casanova-Burgess and Jessica Glenza, who covers health for The Guardian, spent the fall looking for answers. Alana sets it up.
ALANA CASANOVA-BURGESS Let's start this hour with an alternate history, a road not taken.
JUSTICE GINSBURG Captain Susan struck against the secretary of defense. It would have been a life choice for the first reproductive freedom case to come before the U.S. Supreme Court. [END CLIP]
ALANA CASANOVA-BURGESS It's an obscure one, but Ginsburg has discussed it often, even bringing it up during her confirmation hearing in 1993.
JUSTICE GINSBURG She became pregnant while she was serving in the Air Force in Vietnam. [END CLIP]
ALANA CASANOVA-BURGESS And as recently as this September at the University of Arkansas
JUSTICE GINSBURG Pregnancy in those days was a mandatory for discharge. [END CLIP]
CAPTAIN SUSAN STRUCK I mean, how could you be ready for worldwide duty if you have kids to take care of, you stupid woman, don't you know better? We're talking a long time ago, guys.
ALANA CASANOVA-BURGESS Jessica and I met Captain Susan Struck, now retired Lieutenant Colonel Struck in Sierra Vista, Arizona, last month. She lives 40 minutes from here near the U.S. Mexico border on 40 acres with a horse named Thunder, four dogs, four cats. She suggested we do the interview outside at Veterans Memorial Park, a patch of green flanked by two parkways ]
I noticed your hat. What does it say?
SUSAN STRUCK I belong to the 12th Tactical Fighter Wing Association. They're all Vietnam veterans.
ALANA CASANOVA-BURGESS She grew up in a Roman Catholic family in Louisville, Kentucky. Struck was a high school freshman when she decided she wanted to join the military. Her way of avoiding domestic life.
SUSAN STRUCK I was not interested in starting a family, getting married, doing any of that kind of hokey stuff that young Catholic girls did back in the day.
ALANA CASANOVA-BURGESS So she studied nursing in college, joined the Air Force and ended up at Davis-Monthan Base in sunny Tucson in the late 60s. She fell in love with the landscape, learned how to drive, got a Camaro. It was her first time away from home.
SUSAN STRUCK I was a 23 year old virgin and lost my virginity, liked it and said, I believe in God. I'm spiritual. I have my own feelings. I know where I am. And I'm not going to go to confession because it means that you're not going to commit those sins anymore.
ALANA CASANOVA-BURGESS Well, a couple of years on, the Air Force asked her where she'd like to serve.
SUSAN STRUCK I put in for Thailand as my first choice and put in for Vietnam as my second choice,
ALANA CASANOVA-BURGESS Even knowing that the war was absolutely rage at that point?
SUSAN STRUCK That’s what was important at that time. It's what the military does. Nurses are needed anywhere.
ALANA CASANOVA-BURGESS One spring day in 1970, at a base in Phù Cát, Vietnam, she began to feel dizzy.
SUSAN STRUCK I sat down on a rock and I'm sitting there say, why in the heck did I get dizzy? I don't know. And I just. And then I just knew. I just knew I was pregnant. I said “oh s***,” because I'd run out of pills anyway. They were not available on the bases. They didn't cater to women's needs.
ALANA CASANOVA-BURGESS What did you think about as the various possibilities? Did you consider abortion an option?
SUSAN STRUCK That's when I was still at Phù Cát actually, because I figured the sooner the better an abortion would be it. But I would have to go someplace like Japan to do it. Nobody there could do it because that would be breaking the regulation that even if I had an abortion in Vietnam, I was in active duty and I would still be discharged
ALANA CASANOVA-BURGESS Because you were pregnant?
SUSAN STRUCK Because of the pregnancy. And I went to bed one night and I said, tomorrow I'll go ask our dispensary commander if I could have a trip to Japan. And I was gonna ask and that night I had a dream. And that dream was my fetus talking to me, actually. And, you know, it said you’re my, mommy and I, I'll see you soon. That type of a dream. And I just woke up, and I sat up in bed and I said, “No way, no way are they going to do this to Struck. Susan Struck is not going to fall for this crap.” I knew it was going to have to be court because I already knew that the regulations said if you're pregnant, you cannot be active duty. If you have a child, you cannot be active duty.
ALANA CASANOVA-BURGESS So Struck kept her pregnancy a secret on the base. She started writing letters to her siblings, asking if they would adopt her baby.
SUSAN STRUCK It would tear me up if I never knew what happened with her. It would break my heart more so than it did anyway if I was not able to have any kind of influence with her in her life and not give her love and not let her know that her real mother loved her very, very much.
ALANA CASANOVA-BURGESS Two friends, a married couple, where the husband was also in the Air Force, finally said, yes, they'd adopt the baby.
SUSAN STRUCK This is what I needed to do. I would have been a very, very unhappy woman if I had been sent home and left the military. And so it's going to work my way because I couldn't control the other crap with the military regulations. But everything else I could control.
ALANA CASANOVA-BURGESS Struck recognize this crossroad between motherhood and a career. Her mother had enjoyed working for a real estate agency and the company was going to help her get a realtor's license.
SUSAN STRUCK She got pregnant, so she didn’t get to do that anymore. You know, we're talking about the 40s in the 50s and women just didn't work if they were pregnant or had kids, they were expected to be at home fixing supper.
ALANA CASANOVA-BURGESS Struck had been transferred from small Phù Cát base to Cam Ranh Base in Vietnam on the South China Sea. There was a larger hospital closer to combat. And so month after month, she altered her uniform. Patients made lewd jokes. There were rumors. And then one day, the chief nurse asked her, Are you pregnant?
SUSAN STRUCK I couldn't lie. How pregnant are you? I said seven and a half months.
ALANA CASANOVA-BURGESS She knew pregnancy meant automatic, discharged from the military. So she went to her JAG officer, a legal adviser on base who connected her with the ACLU.
SUSAN STRUCK He said, well, how far are you really planning to take this, Susan? I said, I'll take it to the Supreme Court if I have to.
ALANA CASANOVA-BURGESS Coming up, Captain Susan Struck gets a lawyer. This is On the Media.
This is On the Media. I'm Alana Casanova-Burgess, and I've been working with The Guardian's Jessica Glenza. We've been exploring an unknown history of the nation's abortion argument from a time before Roe v. Wade that might serve us with a new way to see this old issue. Ruth Bader Ginsburg said that she would have preferred to see the court focus not on Roe, but on a different case, one that came up the same term. The case brought by Air Force nurse Susan Struck.
JESSICA GLENZA Harry Truman signed an executive order in 1951 saying that service women could not be mothers, whether by birth or adoption or any other way. Pregnancy meant automatic discharge. Once the military discovered Captain Susan Struck was pregnant, her supervisors were unmoved by her plea to give up her baby for adoption. Take a short leave to recover and then return to her job. She was ordered to leave Cam Ranh Base the next morning and go back to a base on the West Coast.
SUSAN STRUCK We were having my going away party and all of a sudden I remembered that I had promised myself I would write “Cam Ranh Base sucks” on the Office Club movie screen before I left.
JESSICA GLENZA Months before she had arrived at the base after hours in transit and told there was no food available. She hated the place right away.
SUSAN STRUCK I remembered it about 10 o'clock at night past curfew, and so I asked a friend of mine I said, “Oh my god, we gotta do something. We got to do something.” She says what? I said. “I can't tell you,” I said, “but we need some red paint.”
JESSICA GLENZA She showed us the photograph and there it was “CRB sucks”, an act of defiance spelled out in huge red letters. Back in the states, there was more to come.
NEWS REPORT A 26 year general Air Force captain, a nurse, unmarried, expects a baby within a few days. And so the Air Force is trying to discharge her, but she has blocked it in court by this weekend, she figures to be the first officer ever to the Air Force's knowledge to have a baby on active duty. [END CLIP]
JESSICA GLENZA The legal battles spiked her blood pressure, and she spent the last two weeks of her pregnancy in a hospital. Tanya was born in December and she stayed with Struck until just after Christmas. Then it was time to hand her over to friends.
SUSAN STRUCK I flew up to Nebraska to hand over Tonya to them and to sign the paperwork for adoption.
JESSICA GLENZA What was that like?
SUSAN STRUCK Can’t talk about it. Hurt like hell. While I was there, I wouldn't let anybody else hold her but me. And when they took me to the airport, I was holding her and I got out of the car, gave her to one of her adopted brothers to hold. And I said, I said, I'll see you, baby sun, because that's what I was calling her, baby sun. And I cried all the way in to the airport, all the way onto the plane, all the way to St. Louis, where I got out to visit my brother. And he says, you know, I really was half expecting you to get off the plane with your baby. And I said, you have no idea how close I came. But there would have been too much a fight and it would never work. My object was that I was going to stay on active duty. And also have something to do with changing the rules.
JESSICA GLENZA Struck out a total of seven discharges from the Air Force, most coming long after her daughter had been born. She thinks it's a record.
NEWS REPORT Captain Susan Struck was scheduled to be discharged in the army at midnight tonight. She'd had a child while in service and that's against regulations. But today, Miss Struck, she is not married, got an order from Supreme Court Justice Douglas preventing her discharge until the issue was thrashed out. [END CLIP]
NEWS REPORT She put her infant daughter up for adoption last December but the Air Force still sought to have her discharge under existing regulations. [END CLIP]
NEWS REPORT Today, the 9th U.S. Circuit Court of Appeals in San Francisco rejected Captain Struck’s plea and concluded that, “there is a compelling public interest in not having pregnant female soldiers in the military established.” [END CLIP]
NEWS REPORT Susan Struck as an unmarried captain in the Air Force who had a baby in 1970. She is a Roman Catholic who would not have an abortion. The baby has been given up for adoption. The Air Force wanted her discharge, but she got a court order keeping her in the service until a court could rule on the constitutionality of the Air Force's actions. Today, the Supreme Court said it would rule on this drugs case early next year. [END CLIP]
JESSICA GLENZA Among strikes attorneys was Ruth Bader Ginsburg, then at the ACLU’s Women's Rights Project.
ALANA CASANOVA-BURGESS This is from Ginsburg's confirmation testimony in 1993.
JUSTICE GINSBURG Because no man was ordered out of service because he had been the partner in the conception. No man was ordered out of service because he was about to become a father. [END CLIP]
ALANA CASANOVA-BURGESS Struck’s case happened in 1970--essentially the beginning of the gender equality movement in 1971. The High Court had decided the Equal Protection Clause applied to women, too, but they could still be fired for getting pregnant. Meanwhile, Ginsburg was set to argue the strict case the same term as Roe vs. Wade.
DAHLIA LITHWICK One of the problems in thinking about Roe today is that it was never planted in the firmest possible soil and then it became easier to take whacks at.
ALANA CASANOVA-BURGESS Dahlia Lithwick covers the courts for Slate and hosts the Amicus podcast.
DAHLIA LITHWICK We forget through the rearview mirror that Roe was not actually rooted in a mother's bodily autonomy or dignity. When you go back and you read the Roe opinion, Justice Blackmun, he had been counsel at the Mayo Clinic. He was obsessed with the doctor's rights in that case.
ALANA CASANOVA-BURGESS In fact, as The New Yorker noted a few years ago, Justice Blackman's decision has 48 references to physicians and only 44 to women.
DAHLIA LITHWICK By locating the right somewhere in that conversation or relationship between a woman and her doctor, again, always a man in Justice Blackmun's construction. You really did privilege the physician, if not over the woman, at least on equal footing with the mother. It was simply that's what the court understood was that these wise, judicious men would be helping women make good decisions about what was best for them. But it elides the central moral agent here, which is the woman. And because of that, I think it set Roe up to be more teetery than it needed to be. It was not planted in the soil of women's dignity, women's economic equality, women's autonomy, and no less a person than Ruth Bader Ginsburg has in the years since Roe actually deplored that.
ALANA CASANOVA-BURGESS In Roe, the justices routed the right to an abortion in terms it already recognized privacy or liberty. A woman should be free to make this private decision with her doctor, and the government shouldn't get involved. Although they also split the right into trimesters with more leeway for government regulation further into the pregnancy, Ginsburg made the privacy argument in Struck too, but she rested it primarily on equality grounds. And she has said that this is the case that got her to think in those terms.
JUSTICE GINSBURG The one thing that distinguishes women from men is that only women become pregnant. And if you're going to subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening here, you were going to deny her equal treatment under the law. [END CLIP]
ALANA CASANOVA-BURGESS Senator Hank Brown, a Colorado Republican, asked Ginsburg about it directly.
SENATOR BROWN I could see how the equal protection argument would apply to a policy that interfered with her plan to bear the child. Could that argument be applied for someone who wished to have the option of an abortion as well? Does it apply both to the decision to not have an abortion as well as to a decision to have an abortion?
JUSTICE GINSBURG The argument was it's her right to decide either way, her right to decide whether or not to bear a child. In this case, it was her choice for childbirth. The government was inhibiting that choice. It was the price of remaining in the service. [END CLIP]
NEIL SIEGEL The military policy toward abortion at the time was both more permissive and more coercive than civilian policy. And this is pre Roe or abortion was illegal in most circumstances around the country.
ALANA CASANOVA-BURGESS Duke Law Professor Neil Siegel clerked for Ginsburg in 2003. She declined to speak with us for this story, but Siegel has interviewed her about the Struck case.
NEIL SIEGEL This is the court. I would love to have it known that during the Nixon administration, armed forces bases were offering abortions to women in the service and the dependents of men in service.
ALANA CASANOVA-BURGESS In fact, in July of that year, 1970, the Department of Defense issued a formal policy on abortion. It was the first we were able to find mentioning it explicitly. “Abortions were to be permitted at military base hospitals, even in states where it was illegal.”
NEIL SIEGEL That's the permissive part of it. And also more coercive rights. If you want to keep your job in the military, then you have to terminate the pregnancy.
ALANA CASANOVA-BURGESS Even if that was in secret in Japan, Struck since she was never offered an abortion by the Air Force. But she and other women knew the option was implied. In her brief on the case, Ginsburg also emphasized Struck’s Catholic faith, other service women were more free to make that choice than the captain was, and Struck said that she would take her vacation time to recover from the pregnancy, way less than what men got to recover from all kinds of ailments.
NEIL SIEGEL Could be a broken leg, could also be drug addiction, alcohol abuse. There was no automatic discharge for any of that. And so pregnancy, unlike other disabilities, was grounds for immediate discharge regardless of individual circumstances. And mothers, unlike fathers, were deemed unfit to serve.
JESSICA GLENZA And so this was to be a counterintuitive abortion rights case in which a white middle class woman with an exemplary professional record was choosing birth and the Air Force’s policy was making it impossible. The case illustrates a blind spot in the debate around abortion if government can compel pregnancy. In other cases, it can also compel abortion. It's not just abortion denied, but reproduction controlled.
NEIL SIEGEL The fact that she chose birth at a time when the military was in effect coercing abortion made this case an especially sympathetic one in which to try and persuade an almost entirely all male judiciary that regulations of pregnancy implicate basic questions about women's equality, women's equal citizenship statures, as Justice Ginsburg would put it. And it's happening at a time as well as emerging out of a history in which you had poor women of color being coerced without their knowledge or consent. They come in to the hospital for other surgeries and they end up being sterilized or as a condition to receiving various forms of care that they weren’t seeking. And this case raised the issue of coercion without requiring the court to squarely confront the issues of race and class, given who Captain Struck was.
JESSICA GLENZA Through the captain's dilemma, Ginsburg was also hoping to strike at another problem, one that hasn't been resolved even a half century later.
NEIL SIEGEL That it's wrong for the government to act in ways that reflect or reinforce the inferior social status of traditionally excluded groups, including women. Whether it could be pregnancy discrimination, it can be various forms of sex classifications, it can be various restrictions on access to contraception, to abortion that they're all part and parcel of a separate spheres regime, but also harms women as a group and reinforces their inferior status.
JESSICA GLENZA We were able to find figures for just how many women in the U.S. Air Force became pregnant from 1969 to 1971--just over 4,000, 9% of all women in the Air Force discharged for being pregnant. But the Supreme Court would never hear the strike case. Perhaps fearing the case was a loser, the solicitor general persuaded the Air Force to waive captain strikes discharge. The justices decided this new policy for pregnant women in active service rendered the case moot. Could you talk about what it might have looked like in the future if Struck had been decided versus Roe?
NEIL SIEGEL Right. The traditional view that when a woman gets pregnant, what she supposed to do, how she's supposed to respond is to stop working and go home and prepare to become a mother and be supported by her husband, who is presumably there. And that's exactly what Ginsburg was combating in Struck. The idea that there is a certain way that a woman is supposed to respond to a pregnancy and Captain Struck was being penalized for refusing to occupy that sort of traditional role. So that's the first point is I think this would have been a great vehicle to decide the issue of whether pregnancy discrimination counts potentially as unconstitutional sex discrimination under the equal protection clause. Now, in terms of Struck being the first abortion decision instead of Roe, Justice Blackmun, who writes Roe is not thinking about abortion as a sex equality right at all. But Struck would have been a way for them to see that there are sex equality stakes here. That when you regulate pregnant women, these kinds of regulations can be shaped by gender bias and that the impacts on women are going to be substantially greater than the impacts on men. And I think the equality stakes are pretty clear in Struck to a court that's capable of seeing it. But given the time period and given the composition of the court, I wonder whether they would have even been capable.
ALANA CASANOVA-BURGESS Struck is now a great grandmother. She and her only child, Tonya, have a close relationship, but it's strained. She says the choice she made, the decision she was forced to confront, has weighed on them both.
SUSAN STRUCK You know, there were times she would ask me. She would say, why did you give me away? And I said, I didn't give you away. I gave you to.
ALANA CASANOVA-BURGESS Did that help her, you think?
SUSAN STRUCK Yes, it did. After, you know, after repeating it many times, it did. After saying, I wish it could have been different. You know, I wish I could have had you. It’s one of my regrets. But she says that things are the way they are because they are the way they are. And that's all there is to it. Okay, Tonya, that makes a lot of sense.
ALANA CASANOVA-BURGESS As for her career, she told us that suffered, too, even after her discharge ordeal was over. The records from it were never removed from her Air Force file, she says. Struck was turned down for promotions for years, stalled at the rank of captain.
SUSAN STRUCK So I raised blue hell.
ALANA CASANOVA-BURGESS She retired as a lieutenant colonel. But who knows how far she might have gotten. Another what if.
JESSICA GLENZA As much as her ordeal illustrates the real human costs of gender discrimination, it also says a lot about the contours of the national discussion about abortion and where the politics have ended up. Today, Struck supports President Trump, although she says she doesn't identify with either party. She gets her news from sources like Fox News, One American News Network and Newsmax. She's concerned about immigration and was involved in the Tea Party. And like so many Americans, she has complicated views on abortion.
SUSAN STRUCK As a Catholic, I'm supposed to be against abortion in any way, shape or form. I'm not. Like when I was thinking about having abortion, it was like when I was 1 to 2 months pregnant and there wasn't any viability of the fetus, period. And it would've just been, you know, just a clump of cells.
JESSICA GLENZA She doesn't oppose abortion if a woman's life is threatened by the pregnancy or if the fetus is badly deformed, unviable. Polls show most Americans hold that view, too. But like 55 percent of respondents, she doesn't want federal taxpayer money to pay for it. In fact, she doesn't want the federal government involved at all.
SUSAN STRUCK Being a fiscal conservative, I believe it should be up to the states.
JESSICA GLENZA And of course, that was exactly the state of affairs before Roe v. Wade was settled. A patchwork of restrictions and regulations on abortion rights just as those adopted by the military. President Trump often repeats the myth that doctors perform abortions at nine months.
PRESIDENT TRUMP Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother's womb moments from birth. These are living, feeling beautiful babies who will never get the chance to share their love and their dreams with the world. [END CLIP]
SUSAN STRUCK You know, I just. It just kills my soul. And this idea of allowing abortions up until the ninth month and then letting the baby die when it's a viable baby to me is it's something out of a horror movie to me.
ALANA CASANOVA-BURGESS Of course, neither political party promotes infanticide and no state allows a fetus to be aborted in the ninth month unless the woman's life is threatened or if the fetus isn't viable. Both conditions under which struck supports abortion access.
JESSICA GLENZA Duke Law School Professor Neil Siegel has written that the Struck case from an era past has lessons for our present debate.
NEIL SIEGEL There is an awfully good chance that an increasingly traditionalist conservative Supreme Court is going to view various instances of pregnancy discrimination as not sex discrimination. And if that's right, then I think this story of Struck and Ginsburg's work in Struck and Captain Susan Struck, in my view, deserves to be honored by collective memory. They can all serve as a reminder of the legal vulnerabilities and the real human costs of the path that the Supreme Court may very well take. And as long as the Republican doors, it's never over. We're not at the end of history. This is not the Supreme Court we're going to have in 20 or 30 years, maybe not even in 10 years.
JESSICA GLENZA Now Struck, in the process of writing a book, is becoming the author of her own story as she sees it. Her crusade was aimed at a much narrower target than the one seen by legal scholars. It wasn't about abortion. It was a discreet step on the path toward equality. Today, women no longer have to choose between motherhood and the military.
SUSAN STRUCK You know, it's something that was very monumental for the military that had to happen. And it happened with me in the 70s. And women shouldn't forget it because there isn't any reason why you shouldn't fight for what you want. And women have been doing that ever since. Our first woman general was named general the same year that my case was settled. And that kinda tells me something.
ALANA CASANOVA-BURGESS Nearly 50 years later, there's still a long way to go for all women. The Pregnant Workers Fairness Act hasn't passed Congress. The U.S. maternal mortality rate has actually been going up. And despite Supreme Court rulings, access to abortion is more endangered than ever. So coming up, we look beyond Roe vs. Wade to reproductive justice.
JESSICA GLENZA This is On the Media. I'm Jessica Glenza of The Guardian.
ALANA CASANOVA-BURGESS And I'm OTM producer Alana Casanova-Burgess. So instead of the equality arguments we got Roe, planted in as Slate's Dahlia Lithwick described the shakier and more conservative ground of a woman's private relationship with her doctor. So what are we facing now? She says there are two kinds of attacks on Roe. One is the use of trap laws or targeted regulation of abortion providers. She thinks the conservatives on the court have a preference for chipping away at access rather than an outright ban.
DAHLIA LITHWICK Presumably by that theory, they will never write the sentence, Roe v. Wade is now overturned.
ALANA CASANOVA-BURGESS The second kind of attack adopted this year is much more direct.
DAHLIA LITHWICK What we're hearing in Alabama, what we're hearing in Georgia, you know, Texas had hearings about whether they could actually have capital punishment for women who have abortions. So there has been this new strain in passing these laws that are just purely punitive. This is not just about abortion anymore. Donald Trump has a nominee up for a federal judicial seat who is opposed to IVF, who is opposed to surrogacy.
ALANA CASANOVA-BURGESS Since we recorded this interview, that judge has been confirmed.
DAHLIA LITHWICK I think that we failed to apprehend that the attack on abortion loops in an attack on contraception, on Plan B, even sex education. It's incredibly myopic to think that this ends at six week bans or heartbeat bans. I think this really does include, as I said, objections to even surrogacy. There's a little bit of “NIMBYism” sitting in New York and saying, “well, it's never gonna happen here because we'll always have access.” But I think the long game is federal criminal penalties for women who terminate their pregnancies.
ALANA CASANOVA-BURGESS So fears about the end of Roe miss the bigger picture. Despite wide ranging threats to women's reproductive freedom and legal rights, election after election, confirmation after confirmation, the conversation usually stops at Roe.
NEWS REPORT The case that every nominee gets ask about Roe v. Wade. Can you tell me whether Roe was decided correctly?
NEWS REPORT Do you view Roe as having super precedent?
NEWS REPORT Senator McCain, you believe Roe v. Wade should be overturned? Senator Obama, you believe it shouldn't.
NEWS REPORT Do you believe that reasonable people can disagree on Roe v. Wade?
NEWS REPORT Do you think Roe v. Wade changed American society?
NEWS REPORT Roe is the settled law of the land. Did you mean settled for you? [END CLIP]
NEIL SIEGEL Roe, by the way, is not the law.
JESSICA GLENZA That last voice was Duke Law Professor Neil Siegel. Justice Ginsburg's former law clerk. He's also served as a special counsel to senators during the Supreme Court confirmations, including those of Brett Kavanaugh and Neil Gorsuch, which Siegel says that actually the law of the land was established not by Roe, but by Planned Parenthood v. Casey in 1992. That case upheld the right to abortion while allowing some restrictions. But it did stipulate that restrictions could not impose a, “undue burden for women.” Today's court challenges are about that standard set by Casey.
NEIL SIEGEL I think it's important, not just pedantic, because Casey allows much more government regulation of abortion than Roe ever did.
JESSICA GLENZA Describe what you think. A better question would be beyond, will you uphold Roe vs. Wade?
NEIL SIEGEL Does the Constitution protect women too? And in what ways do restrictions on access to contraception implicate gender equality? How do restrictions on access to abortion? Right. What about the treatment of pregnant workers in various circumstances? Because I think it would underscore that it's not simply a litmus test about views on abortion. It's about a much broader constitutional vision in which the parties today in a very polarized country really disagree. I mean, why does opposition to abortion among certain religious groups highly correlate with opposition to same sex marriage? Whatever you think about same sex marriage, it has nothing to do with destroying fetuses. So why is it that you have similarly strong opposition? I think it has a lot to do with views about the traditional family and people occupying nontraditional gender roles.
JESSICA GLENZA There is a term “reproductive justice” which expands the frame beyond Roe and beyond abortion.
LORETTA ROSS So the elevator speech is the right to have a child, not to have a child, and to raise and parent your children and safe and healthy ways. Implicit in that right is the human right to bodily autonomy, gender identity, the right to control and defines one's sex and sexuality.
JESSICA GLENZA Loretta Ross is a visiting professor at Smith College and she's one of 12 African-American women who in 1994 were eager to broaden how these issues were discussed in the U.S..
LORETTA ROSS We spliced together the concept of reproductive rights and social justice and created the term “reproductive justice.”
JESSICA GLENZA In the U.S. abortion argument, relatively little time seemed to be devoted to the lack of options leading up to pregnancy, access to contraception, say or sex education. And even less attention was paid to the challenges women face after choosing to have a child, including limited or no access to maternal health care or child care. And in all this, the U.S. lagged behind the international conversation.
LORETTA ROSS Well, we came up with the framework three months before the September 1994 International Conference on Population and Development in Cairo. But when we went to Cairo, what we found that what we were demanding under the U.S. constitutional system was something that the world feminist community was demanding under the human rights framework, that no individual can successfully manage their own fertility in a context in which they're experiencing systemic and sustained underdevelopment. In other words, you can't self-help yourself out of a situation where there's no health care system.
ALANA CASANOVA-BURGESS So it sounds like you had two realizations during that time. One, that maybe choice was too narrow and the second that you were not asking for as much as your global colleagues?
LORETTA ROSS Well, that's true. When people talked about human rights in the United States, they basically imagined the tortured prisoner in a jail overseas somewhere. They weren't necessarily seeing the human rights violations that are committed in the United States by either the government, the state or corporations or individuals, when people are denied full access to their reproductive decision making. And so we felt it was very vital to bring human rights home and not be limited to the narrow interpretations and the legalistic limits of the U.S. Constitution.
ALANA CASANOVA-BURGESS Ross is also a founder of the SisterSong Women of Color Reproductive Health Collective, and she's served as an escort to women and girls who don't have access to abortion where they live and need to travel to other states for the procedure. A 2017 study found that nearly 90 percent of U.S. counties, accounting for almost 40 percent of women of reproductive age, had no abortion clinics whatsoever. And yet, geography isn't the only barrier. She says that imagining Roe is a sacred rampart that guarantees access to abortion has been wrong since pretty much the beginning.
LORETTA ROSS Well we've always been in a post-Roe world for people who lack access to basic health care. And of course, with the passing of the 1976 Hyde Amendment that set up reproductive health care access, depending on whether or not your health care is provided by the federal government, which prohibits, of course, poor women on Medicaid and the Indian health services and in the military from accessing the same reproductive health care, particularly abortion care that people who don't have their health care provided by the federal government. Since the 70s, we've had a two tiered health care system that is packed with discrimination based on status and class.
JESSICA GLENZA So should we stop talking about Roe vs. Wade then?
LORETTA ROSS Well, you don't pull your finger out the dike while you're building a better dam, you know? We still have to talk about it, but we have to also recognize that it's porousness is what allows people to chip away with it.
REVA SIEGEL I've never thought that the abortion issue was a stand alone issue.
JESSICA GLENZA Yale Law School Professor Reva Siegel is co-editor of the book Reproductive Rights and Justice Stories. She's got another phrase to denote the broader issue of women's reproductive rights and freedoms. She calls it “pro choice life.”
REVA SIEGEL The pro-choice life framework is asking us to evaluate the stakes. If a state claims to restrict abortion because it cares about unborn life, but it doesn't help a woman who wants to avoid motherhood do so through providing sex ed or contraception, or it doesn't help a woman who wants to become a mother by providing her health care or work-family accommodations. How genuinely or systematically does it really care about protecting life? Like what, what are we to make of the underlying value choices there? Are they judgments about women, or are they really commitments to the unborn?
JESSICA GLENZA Take, for example, the state involved in the latest Supreme Court case.
NEWS REPORT The attorney general of Louisiana said today, we will not waver in defense of our state's pro woman and pro-life laws, and we will continue to do all we legally can to protect Louisiana women. [END CLIP]
REVA SIEGEL So it's restricting access to abortion, but it has one of the highest maternal mortality rates with respect to childbearing in the United States. With respect to race, the numbers are even worse. Similarly, the state of Louisiana hasn't done Medicaid expansion for pregnant women, that other states have. So there's a point to asking jurisdictions that claim to be pro-life outside the abortion context, how did their policy choices compare with other jurisdictions? There actually are commitments of care that may prove to be purple issues through which we can do coalition politics, even if we can't agree around the abortion issue.
JESSICA GLENZA So in other words, it's a way to look at the problem, but also a way to find common ground that we may think of as nonexistent
REVA SIEGEL 100 percent. For an example, when I was in law school, I worked on issues of employment, accommodation for pregnant women. It's ridiculous, but we're still having difficulty with that question. You would think that a country is torn up as we are around issues of abortion would at least managed to get it right with respect to the employment of women when they're pregnant. But it turns out that that's one of the highest issues of employment discrimination that we have right now in Congress. There was finally a hearing for a Pregnant Workers Fairness Act, which would require the reasonable accommodation of pregnant employees. And to this point, the Republican Party has not quite managed to get in line in support of the legislation. The question is, why not? Why wouldn't the party of life commit along those lines? Having said this, I think 27 states have passed these laws at the state level and many are red and purple. South Carolina has passed the law. Kentucky has passed the law. Utah's passed the law. So these are laws that jurisdictions that consider themselves pro-life can get behind. There are grounds where people can come together. And I think it will be a great thing if we found more of those.
ALANA CASANOVA-BURGESS There used to be more common ground. Reva Siegel is also the author with Linda Greenhouse of Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling. They document a counterintuitive history. For instance, more Republicans than Democrats supported legalizing abortion. And a vast web of religious leaders known as the Clergy Consultation Service helped women get access to the procedure.
REVA SIEGEL This was a network that ran across state lines all over the United States. These acts of conscience were to ensure that women who were going to have access to abortion would do so in a way that would allow them to act with dignity, to preserve their fertility, to preserve their lives. The usage of conscience was reversed to the way that we understand claims on conscience asserted today. They're the law breaking was to provide access to abortion and the claims there were for life. That is to say, to protect women's lives.
ALANA CASANOVA-BURGESS But feminists originally didn't understand abortion to be “part of their central narrative,” as Siegel and Greenhouse put it, at least not until the women's strike for equality in 1970.
NEWS REPORT Betty Friedan seems like one of the most exciting weeks the women's liberation movement has ever known.
BETTY FRIEDAN How do you view it? It's much more than that. It's perhaps the most exciting week in the history of women. [END CLIP]
REVA SIEGEL It was a kind of spontaneous action that took place around the United States. Fifty thousand people marched in New York, in other cities. They were smaller.
NEWS REPORT We are urging women not to take care of children on this one day. And. I mean, there will be officers all over the country that will be flooded with children brought to their fathers and let them worry about this problem. [END CLIP]
REVA SIEGEL They were marking the anniversary of women's right to vote. August 26 of 1970 was the half century anniversary of the ratification of the 19th Amendment.
NEWS REPORT Women all over the country are calling and writing and saying they are going to cook that day. And to many women, this is the only thing they're gonna do. They're not going to get out in the street. But for one day, you know, after 6000 years, they're not going to cook. And I think this is very significant. [END CLIP]
REVA SIEGEL And these demands were saying something to the tune of women will have equal citizenship, not only when they can vote, but also when they have the ability to transform the conditions under which they conceive and bear children.
NEWS REPORT Another thing we're doing is we're passing our contraceptive information in the streets of various cities. [END CLIP]
REVA SIEGEL They were making claims for a set of new demands, including ratification of an equal rights amendment--still not ratified--and equal employment educational opportunity, that was the passage of, among other things, Title 9, which get passed out of that. Second demand was access to abortion rights. And the third was for access to 24 hour child care. People don't know it. But there was nearly passed a federal childcare statute in the wake of that strike. And so you can see that the claim for abortion rights is appearing as nested in these equality rights of the women's movement circa 1970.
ALANA CASANOVA-BURGESS And in New York and Connecticut, lawyers had already begun bringing suits using the equality language just a few years before Ginsburg wrote her Supreme Court brief in the Susan Struck case.
REVA SIEGEL The complaint in the New York case said that abortion laws are both the result and the symbol of the unequal treatment of women. And so long as such a “broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice.” So these arguments were definitely circulating, but they weren't articulated by the United States Supreme Court when it actually decided Roe.
JESSICA GLENZA And so what should we expect from today's conservative bench without the swing vote of Justice Kennedy? Reva Siegel said she had a revelation recently when she was walking across Yale's campus. She was going to teach a class about Kennedy's decisions for the first time since his retirement and since Kavanaugh's appointment.
REVA SIEGEL So the normal response to anybody who's concerned about this body of law is one generally of dread, if not horror. But I had suddenly this sense of really flooded with this sense of relief. And in fact, the light was probably not coming from the sky, but from me. And it was just this sense that there was no longer a chance of making any sense of this law in a way that would satisfy or persuade anyone in the United States Supreme Court and the fact that it was no longer possible and therefore, one was free to talk about what the constitution means and requires--free of their control--because one couldn't persuade them.
JESSICA GLENZA In the same way that a wildfire can be incredibly destructive, you suddenly have all this new room for growth potential that you see in this body of law that you care about so much.
REVA SIEGEL Absolutely. And because I want to bring us all the way back to that story that I told you about, the strike for equality and the 19th Amendment. What was that story but a story about women who had never been adequately or fully or fairly represented in the American constitutional order, trying to make their voices heard at a point at which they were still facing a judiciary in which women were only 1 percent of the sitting justices or judges, virtually no women in the United States Congress. And yet they did succeed in making themselves heard, but their voices were garbled. So if this story, which has been part and parcel of the American constitutional tradition coming on a half century now gets retold, it will get retold in more robust and better grounded terms by decision makers who better represent the American polity.
This court is deciding questions that are deeply at odds with the understandings and mores of a lot of young people. My view is that this body of law is going to evolve and change and regrow through mobilizations, across state lines and through state legislatures and in state courts and over new generations and maybe grow in a new and a better way. But it's going to take some time for that to happen. And what will emerge from it will be a better and a stronger thing. That's at least the most positive thing I can say about it.
JESSICA GLENZA Reva Siegel is a professor of law at Yale and co-editor most recently of Reproductive Rights and Justice Stories.
BROOKE GLADSTONE That's it for this week's show, which was produced and reported by a Alana Casanova-Burgess and Guardian journalist Jessica Glenza. Special thanks to WNYC archivist Andy Lanset. On the Media is also produced by Micah Loewinger, Leah Feder, John Hanrahan, and Asthaa Chaturvedi. We had more help from Charlotte Gartenberg and our show was edited by me. Our technical director is Jennifer Munson. Josh Hahn was our engineer. Katya Rogers is our executive producer, On the Media is a production of WNYC Studios. Bob Garfield will be back next week. I'm Brooke Gladstone.
JESSICA GLENZA One last thing before we go. The Guardian wants to hear from women who served in the military before 1976 about their experience with the policy against motherhood. Go to gu.com/militarymotherhood. That's gu.com/militarymotherhood, and thanks.