For almost 40 years, politicians and talking heads have debated the merits of the Supreme Court's Roe v. Wade decision. There have been hours of analysis evaluating the odds that the decision could be overturned. Presidential candidates have sworn to protect the pro-Roe majority, or appoint jurists who would reverse the decision. Norma McCorvey -- Jane Roe of Roe v. Wade -- even had a change of heart and asked a federal court to overturn the landmark decision in 2003.
So it may come as a surprise that Supreme Court Justice Ruth Bader Ginsburg, a noted advocate of the women's rights movement, wishes that Roe v. Wade hadn't happened.
In Justice Ginsburg’s perfect world, a woman’s right to make choices about her reproductive health would have been decided through Struck v. Secretary of Defense, an earlier case that was dismissed while awaiting Supreme Court review, reports Salon.
Susan Struck was an Air Force captain when she became pregnant in 1970. Her commanding officer gave her two choices: abortion or resignation. Instead of choosing, Struck sued. Justice Ginsburg, working for the ACLU, represented Struck, arguing that the regulation banning pregnant women from service was sex discrimination, and that Struck should have the right to choose whether or not she wanted to have a child; a military directive to the contrary violated Struck’s rights.
The case was heading to the Supreme Court when Solicitor General Erwin Griswold realized that he would lose, (to one of his female former students, no less), so he recommended that the military change its rule. The case became moot, and the right to an abortion was established the following year in Roe v. Wade.
Whether through Struck or Roe, the Supreme Court would have decided that a woman has a right to choose to end her pregnancy, and the pro-life/pro-choice factions would have formed. But from an academic standpoint, would the right to choice be more palatable if it emanated from a woman’s right to keep her baby? Would the debate on the merits of the issue be more civil?
- Before Roe v. Wade (Yale Law School)
- Roe v. Wade (FindLaw’s CaseLaw)
- Judge Sparks Criticizes 5th Cir As Texas Sonogram Law Takes Effect (FindLaw’s Fifth Circuit blog)
- Kansas AG Appeals Planned Parenthood Title X Funding (FindLaw’s Tenth Circuit blog)