Equality and choice: sex equality perspectives on reproductive rights in the work of Ruth Bader Ginsburg.

• Author: Siegel, Reva B.
• Position: Symposium Honoring the Advocacy, Scholarship, and Jurisprudence of Justice 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.

1. 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:

   1. 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. (10) As the brief wryly observed, unlike women in the Air Force, "[m]en in the Air Force are not constrained to avoid the pleasures and responsibilities of procreation and parenthood." (11)

   2. The anti-stereotyping: Ginsburg's equal protection argument objected to different treatment, and something more. It challenged (1) government imposition of (2) traditional, stereotypical sex roles on men and women. Ginsburg argued, "Mandatory pregnancy discharge reinforces societal pressure [on women] to relinquish career aspirations for a hearth-centered existence." (12) Air Force policy enforced the "discredited notion that a woman who becomes pregnant is not fit for duty, but should be confined at home to await childbirth and thereafter devote herself to child care." (13) As the quoted passages illustrate, the brief's challenge to state-imposed sex roles was especially concerned with legal imposition of the breadwinner/caregiver family roles historically associated with the separate spheres tradition. (14)

   3. The anti-subordination principle: The Struck brief characterized the harm of government-imposed sex roles in the language of subordination. Ginsburg argued that the law's "[p]resumably well meaning exaltation of women's unique role in bearing children has, in effect, denied women equal opportunity to develop their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society." (15) The harm described here is dignitary as well as material: the law denies women the capacity to lead autonomous self-governing lives, and instead imposes on women, as a group, a dependent subordinate status.

   Another groundbreaking aspect of the Struck brief is the way it connects liberty and equality. Most simply, the brief connects liberty and equality in challenging the Air Force policy by appealing to the equal protection and substantive due process components of the Fifth Amendment's Due Process Clause. (16) But the brief does not simply challenge the Air Force policy on two different constitutional grounds; it shows how each constitutional concern implicates the other. The brief demonstrates how practices that deny women equal treatment limit their freedom, (17) and how practices that constrain women's liberty deny women equality. A recurring theme of the brief is that laws that stereotype--that constrain women's freedom in the choice of social roles--deprive women of equal citizenship. (18) In so arguing, Ginsburg was giving early and especially forceful legal expression to equality arguments for reproductive rights advanced by feminists as they joined the campaign in the early 1970s to repeal abortion restrictions. (19)

2. Over the Decades: As a Professor and Judge

   Ginsburg's 1972 brief in Struck opened themes she would pursue as an advocate, as a professor, as an appellate judge, and as a Supreme Court justice. From the very beginning, Ginsburg saw regulation constraining women's reproductive choices as presenting equal protection questions. And from the very beginning, the United States Supreme Court resisted the claims of the women's movement that the regulation of women's reproductive lives should be analyzed in an equal protection framework. In 1974, the Supreme Court ruled in Geduldig v. Aiello (20) (a movement case litigated by Wendy Williams) that exclusion of pregnancy from a comprehensive disability benefits program did not violate the Equal Protection Clause because discrimination on the basis of pregnancy was not necessarily "discrimination based upon gender as such." (21) Professor Ginsburg objected, in exasperation, in the 1975 Supreme Court Review: "Is the answer that pregnancy can't happen to man, therefore pregnancy classifications can't discriminate on the basis of sex? Or because they affect women exclusively do pregnancy classifications merit particularly careful inspection?" (22) She then emphasized: "Discussed at length in Appellees' brief were the stereotypical attitudes and generalizations about sex roles in society underlying disadvantageous jobrelated treatment of pregnant women." (23)

   In a series of papers published in 1978 after Kenneth Karst's groundbreaking Harvard Law Review Foreword, (24) Professor Ginsburg further raised the stakes, insisting that the Court was misapprehending the sex-role logic of laws that excluded pregnant employees from work and that criminalized women's access to contraception and abortion:

   The High Court has not yet perceived the full dimension of current controversy surrounding gender-based discrimination.... 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, Professor Karst underscored, surely one of the most important in this final quarter of the twentieth century. (25) Ginsburg was concerned about the Court's failure to recognize that there was textual authority for the movement's constitutional claims--the Court's failure to base its decisions about contraception and abortion on the Equal Protection Clause. But she was also concerned about the Court's grasp of the social concerns at stake in the regulation of contraception and abortion, the Court's inability to appreciate that laws criminalizing contraception and abortion define "the roles women are to play in society." (26) Professor Ginsburg continued:

   Unlike Professor Karst, the Supreme Court either does not see, or is unwilling to acknowledge, all of these cases as part and parcel of a single large issue. Precedent to date generally places explicit gender-based differentials, illegitimacy, pregnancy, and abortion in separate cubbyholes. Roe v. Wade and Doe v. Bolton, the 1973 abortion decisions, for example, barely mention women's rights. They are not tied to equal protection or...