Abortion

That was the case of Capt. Susan Struck, who had become pregnant in 1970. The Air Force demanded she either terminate the pregnancy — abortions were being conducted on bases back then — or leave her post. Struck, a Catholic, said she wouldn’t have an abortion but would put the child up to adoption without taking off any unusual amount of medical leave. Though she lost both at the district court and the circuit-court level, she appealed to the Supreme Court, which agreed to hear her case until Solicitor General Erwin Griswold persuaded the Air Force to simply waive her discharge and change the rule. Ginsburg was disappointed.

“I thought if Susan’s case came first,” she said — before Roe, which would be heard a year later — it would be preferable for the goals of women’s equality, because “her choice was birth. Solicitor General Griswold saw to it that we did not have that opportunity.” (This was the same Griswold who, as dean of Harvard Law School, asked the rare women in Ginsburg’s class how they justified taking spots that should have gone to men. Ginsburg later transferred to Columbia Law School.)

Instead, it would be Roe that would invalidate state abortion bans, an outcome Ginsburg said not only “moved too far too fast” but failed to make a women’s equality argument. ”If you read the decision [in Roe], it’s as much about the doctor’s right to recommend to his patient what he thinks his patient needs. It’s always about the woman in consultation with her physician and not the woman standing alone in that case,” she said.

Yale reproductive rights scholar Reva Siegel wrote in a recent essay celebrating Ginsburg’s brief in the Struck case — it was overlooked in part because she never got to argue it — that “Ginsburg and the women’s movement talked about pregnancy discrimination in a way that ties together pregnancy discrimination and women’s equality, and women’s equality and reproductive freedom, before the Court split them apart in cases such as Roe v. Wade, Frontiero v. Richardson and Geduldig v. Aiello. The Court made some fateful choices in those cases: to focus its sex equality jurisprudence on cases other than pregnancy, and so to develop its sex equality jurisprudence in isolation from its abortion jurisprudence.”

That was also true of many of the litigants at the time, Ginsburg said Friday, including the ACLU, which had been involved with Griswold vs. Connecticut, the case overturning a state contraceptive ban with a substantive due process argument that focused on privacy. Ginsburg preferred “women’s change to chart their own life course,” consistent with her idea that full citizenship meant the right to choose a life distinct from sex-role stereotypes.

But an abortion rights case involving a woman who wanted to choose to give birth would also have been consistent with the current reproductive justice framework, which is about bodily autonomy and a woman’s right to moral dignity and self-determination. And Ginsburg, who brought several sex-discrimination cases with male plaintiffs, clearly understood the power of framing these choices with potentially surprising reversals that showed how traditional gender roles limited everyone.

It wasn’t to be. Ginsburg called Struck to try and see if there was any way to press on with her case once the Air Force changed its policy. “‘My dream is to be a pilot,’ she said, but the Air Force doesn’t give flight training to women.’ We both laughed because in 1972 that was an impossible dream. That’s one sign of how much things have changed.”

During the question-and-answer portion, I asked Ginsburg about her comments last year that she likely couldn’t be confirmed today because of her women’s rights work. I asked if that made her concerned about the legacy on the bench of the issues she cared about.

“My dear husband once said that the symbol of the United States really isn’t the bald eagle,” she said. “It’s the pendulum.” She referred to contentious confirmations that preceded hers, and to the fact that despite being warned by the coaches for her confirmation hearings that she would have to answer for her ACLU work, it never came up. “The Senate was then determined to do it the way it should be done,” she said. “I think my biggest champion on the Senate Judiciary Committee was Orrin Hatch.” Justice Stephen Breyer, she pointed out, had a similarly uneventful confirmation hearing. “And then the divisiveness started up again.”

“I’m hoping that a saner view will prevail and we will get back to the process the way it should be,” she added. She didn’t address the part about the legacy.

Sparks is a George H.W. Bush appointee and scion of Texas sheriffs who suggested that the ultrasound law was the “Texas Legislature wish[ing] to prioritize an ideological agenda over the health and safety of women,” and even that the law would drive out qualified practitioners who didn’t want to submit to state-compelled speech. “Forcing pregnant women to receive medical treatment from less-skilled providers certainly seems at odds with ‘protecting the physical and psychological health and well-being of pregnant women,’ one of the act’s stated purposes,” he wrote. He barred the law from being enforced — which held until it got to the circuit court headed by Jones.

Jones, a Ronald Reagan appointee who has written that she “fervently hope[s]” that the Supreme Court reevaluates Roe v. Wade, had previously expressed her annoyance with Sparks for the manner in which he refused to allow exhibits of aborted fetus photos in the court. “The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus,” Sparks replied to the attorney who wanted to submit them. “As any competent attorney could have predicted, the Court declines this latest invitation as well.”

Jones responded by copying all of his colleagues on a stern email to Sparks, saying,  ”It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks.” She referred to them as “caustic, demeaning and gratuitous,” and added, “Frankly, this kind of rhetoric is not funny.” Of course, the email itself promptly ended up on several more “nationally known blog sites.”

Jones was one to talk. Days later, she slammed her fist down at the table in oral argument and told her fellow circuit judge to “shut up” or leave.

But this isn’t ultimately about courtroom civility or entertaining invective — it’s about a judicial philosophy that holds that it’s within the state’s right to try to talk women out of their decisions, or at least make them as grueling as possible, versus one that sees women as people capable of making life-changing decisions for themselves. When Jones and two fellow circuit judges ruled on the Texas law last week, Jones’ opinion disagreed with Sparks that the so-called “Woman’s Right to Know Act” was a case of forced speech in violation of both the woman and the doctor’s constitutional rights. That was indeed a relatively novel approach, since the Supreme Court in Planned Parenthood v. Casey had rejected a First Amendment argument. On the other hand, the law at question in that case did not involve a medically unnecessary wand up the vaginal canal.

Jones denied that making the woman (and her doctor) go through these procedures constituted “ideological speech,” even though she seemed to believe would further the state’s “interest in protecting life.” (In a footnote, she said Sparks “misunderstands the term” ideological, and helpfully provided a link to Merriam Webster’s entry on the word.) She said information about the fetus was as relevant as information about possible health risks to the mother, because “only if one assumes … that pregnancy is a condition to be terminated, can one assume that such information about the fetus is medically irrelevant.” Well, yes, given that the procedure in question is taking place when a woman has already elected to terminate her pregnancy and gotten all the way to the abortion clinic, you can assume it is a “condition to be terminated.” The ideological speech in question is the one that assumes that she doesn’t know her own mind and needs to be subjected to potentially humiliating or difficult processes first.

In her decision on Jan. 10, Jones not only overturned Sparks’ temporary injunction — she rapidly granted Texas’ request to make the decision effective immediately so it could soon start enforcing the law. And she said all further actions had to come through the same panel. The Center for Reproductive Rights, which is representing abortion providers in the case against the law, has asked for a rehearing with the entire Fifth Circuit, and not just the three judges led by Jones. Still, there will be no avoiding her.