Equality and Choice: Sex Equality Perspectives on Reproductive Rights in the Work of Ruth Bader Ginsburg

By Siegel, Reva B. | Columbia Journal of Gender and Law, Summer 2013 | Go to article overview
Save to active project

Equality and Choice: Sex Equality Perspectives on Reproductive Rights in the Work of Ruth Bader Ginsburg

Siegel, Reva B., Columbia Journal of Gender and Law

Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation's social, political, and economic life? This is a constitutional issue, ... surely one of the most important in this final quarter of the twentieth century.

Ruth Bader Ginsburg, 1978 (1)

This brief essay explores the sex-equality perspective on reproductive rights that Ruth Bader Ginsburg has articulated over four decades as lawyer, law professor, judge, and Justice. Throughout her career, Ginsburg has viewed laws that deprive women of control over whether and when they bear children as raising questions of equality, as well as liberty and privacy. Ginsburg and other feminists of the 1970s argued that, given the social organization of caregiving work, the state may not deprive women of control over the decision to become mothers without depriving them of equal citizenship.

Over the decades, United States constitutional law has slowly responded to Ginsburg and the movement she helped lead, initially resisting sex-equality claims for reproductive choice, and then partly internalizing these values. Sex-equality reasoning about reproduction now informs the constitutional law of abortion and shapes legislated approaches to pregnancy discrimination, yet plays little role in doctrines protecting women's access to contraception. Sex equality reasoning about reproduction is at the center of the Court's holding in Nevada Department of Human Resources v. Hibbs (2) that Congress had power under the Fourteenth Amendment to enact the family leave provisions of the Family and Medical Leave Act (FMLA), (3) yet is wholly absent in the plurality and concurring opinions in Coleman v. Court of Appeals of Maryland (4) that Congress lacked power under the Fourteenth Amendment to enact the self-care provisions of the FMLA--a judgment from which Justice Ginsburg dissented passionately and at length.

I. As an ACLU Lawyer: Struck v. Secretary of Defenses

From the beginning, Justice Ginsburg understood government regulation of women's reproductive choices as presenting core questions of sex equality. One of Ginsburg's earliest Supreme Court briefs for the ACLU, filed in Struck v. Secretary of Defense, advanced the cause of a woman who had been forcibly discharged from the Air Force because she was pregnant. (6) Under then-prevailing government policy, new mothers could not serve in the armed services, while new fathers could; a pregnant service woman could avoid discharge only if she aborted the pregnancy. (7)

As Justice Ginsburg recently recalled:

   [T]he ACLU had taken on, along with Struck, several other cases
   challenging the rule, then maintained by all the Armed Forces,
   requiring pregnant service members to choose between abortion and
   ouster from the military. But Captain Struck's case was our
   frontrunner. We aimed to present the issue of reproductive choice
   through her eyes and experience. Captain Struck chose birth, but
   her Government made that choice a mandatory ground for discharge.

Ginsburg's merits brief challenged Struck's exclusion from military service on equal protection and due process privacy grounds. Ultimately, the government would change its policy with the aim of mooting Struck's case. (9)

Ginsburg's 1972 brief argued that Struck's discharge for pregnancy violated the Equal Protection Clause. The brief appeals to several conceptually distinct understandings of equality, which together interact to produce a compelling argument for sex equality in the regulation of women's reproductive choices:

A. The familiar demand for equal treatment: In the Struck brief, Ginsburg argued that mandatory discharge from the military for mothers-to-be, but not fathersto-be, enforced a double standard in matters of sex and family roles.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Equality and Choice: Sex Equality Perspectives on Reproductive Rights in the Work of Ruth Bader Ginsburg


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?