The U.S. Supreme Court building in Washington, D.C.
The U.S. Supreme Court building in Washington, D.C. Creative Commons

Ruth Bader Ginsburg made an interesting observation some time ago. Roe v. Wade is an odd ruling because it does not fall under Constitutional law.

Roe v. Wade was about doctor/patient confidentiality. The decision between doctor and patient concerning procedures, including abortion, was protected by confidentiality.

Over the years, all kinds of “rights,” claimed to be hiding within “confidentiality,” became omnipresent and “impregnable,” even though the “rights” are nowhere present in Constitutional law, much less confidentiality itself. Where is it written?

In a sense, the Supreme Court created a law. In the U.S., Congress creates laws. The Supreme Court upholds them. It’s only been the incendiary nature of the topic that’s allowed fury to keep the kite flying, tethered by a thread.

According to Ginsburg, a more rock-solid case, which almost made it to the Supreme Court, was Struck vs. Secretary of Defense.

Susan R. Struck entered on active duty in the U.S. Air Force on April 8, 1967, as a commissioned officer, and served continuously on active duty from that date. As a captain on active duty in Vietnam, she became pregnant. As a practicing Catholic, she carried the baby to term and gave it up for adoption to retain her active status. Nonetheless, the Air Force discharged her because of a regulation that held that pregnant officers on active duty was punishable by automatic (honorable) discharge. In other words, Air Force regulations forced abortion in order to avoid discharge.

Captain Struck sued to keep her status on active duty on the basis that her religion did not allow abortion, that her pregnancy made no difference to her performance, and that the discharge was discriminatory because male officers were not held to the same standard. The discrimination violated her civil rights.

It should be noted that Captain Struck had a pretty good attorney: Ruth Bader Ginsburg.

The case went back and forth. Remanded and discharged seven times, Captain Struck’s refusal to give up, and Ginsburg’s brilliance, pushed the case closer and closer to the Supreme Court. At the eleventh hour, the Air Force struck the regulation from their books, thereby preventing the case from being heard by the Supreme Court. Captain Struck won her position on active duty, although she received vindictive treatment for the remainder of her tenure.

The lesson for those seeking “pro-choice: until Congress passes a law on abortion rights, civil rights is the right track. Better to go after the fathers than the babies from a legal perspective.

In fact, going a step further, the Lysistrata Offense would promise to make fathers beg for equal parenting responsibilities and liabilities (financial and social, including child support, fines, and jail time), even to demand the alternative of abortion as the only palatable solutions to abstinence, including fathers on the Supreme Court.

Robert Orr lives in New Haven.