EQUALITY AND CHOICE: SEX EQUALITY PERSPECTIVES ON REPRODUCTIVE RIGHTS IN THE WORK OF RUTH BADER GINSBURG

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. (8) 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. …