Justice Ruth Bader Ginsburg and the Case that Got Away

by Lori Andrews

Last weekend at Yale, a panel of law professors told mesmerizing stories of Ruth Bader Ginsburg's work as an advocate and as a Justice. The five speakers gave detailed analyses of various briefs and opinions she'd written and how those materials had created a legal foundation for gender equality. But there was a surprising guest in the audience.  Sitting in the first row was the Justice herself.  And after each of the speeches, Justice Ginsburg stood and told the law professors what they gotten right or wrong, or provided some backstory to the cases they'd discussed. It was like that scene with Marshall McLuhan in Annie Hall!

It was especially interesting to hear from her about the case that got away.  In 1971, before Roe v. Wade (the landmark abortion case) reached the U.S. Supreme Court, Ginsburg was litigating what for her was the perfect reproductive choice case.   A woman in the Air Force, Captain Susan Struck, had gotten pregnant and the Air Force told her she was required to get an abortion or give up her job. 

Justice Ginsburg and Professor Andrews several years ago

Struck told her commanding officer that she was Catholic and didn't believe in abortion, but that she had enough accumulated vacation days to have the baby, give it up for adoption, and then come back to work.  Ginsburg thought this was a much better case than Roe v. Wade because it would have provided a better precedent for women's reproductive power--an equality with men, since men could take a vacation for whatever they wanted.  The lower court upheld the firing and Ginsburg, as a lawyer, was headed to the Supreme Court to argue the appeal.  But, at the last minute, the government filed a motion that derailed the case--they changed their rules, and reinstated Struck with back pay.  Ginsburg, trying to find something in the case that she could still appeal, called Struck and said, "Is there anything else that you wanted that they didn't give you?" Struck thought for a moment. They’d given her back her job, they'd compensated her for the pay she missed.

Then, Justice Ginsburg told the audience at Yale, Struck said, "There is something. I've always wanted to be a pilot, but they won't let women in flight training school."

She and Ginsburg had fallen silent.  It was a pipe dream in 1971.  There was no way that they were getting women into flight school then.

Now women soar and there are three women on the Supreme Court.  Yet a woman was recently dismissed from the Air Force for deciding to become a single mom.  We've come a long way, baby…but still not far enough.

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