Struck v. Defense Department: A Better Case than Roe v. Wade?

When Susan Struck was 23, she volunteered as an Air Force nurse in Vietnam. Before she signed on, she was warned that if she became pregnant she would be automatically discharged.

When she arrived in Vietnam, she started dating an F-4 pilot. She soon found herself pregnant and faced a real dilemma: she could resign and become a mother, or she could abort the child and continue serving her country.

As a good Catholic, she did not believe in abortion, and ironically, at that time, military hospitals were the only place where the procedure was legal.

In 1970 the Air Force discharged Struck and sent her home. She wanted to continue her military career, so she tried to get one of her four siblings to raise the baby. They declined, but some close friends did accept her offer.

Determined to get her job back, she went to the American Civil Liberties Union for help. A young attorney named Ruth Bader Ginsburg took her case and filed suit.

Ginsburg argued that Struck’s rights to equality liberty under the law had been violated. The Air Force, she believed, undermined Struck’s choice to have a child, and Ginsburg held that the same argument for equal liberty would apply to a woman who choose not to give birth.

In 1972, the Supreme Court agreed to hear Struck’s case, but the Defense Department changed its policies in the face of losing an argument that even then appeared indefensible. To this day Ginsburg regrets not being able to try a case that she now thinks would have been stronger than Roe v. Wade.

In the 19th Century laws against abortion were promoted primarily by doctors, whose principal motivations were to control female reproduction and shut down the work of midwives, whose practices they thought were unhygienic and dangerous.

Ginsburg argued that doctors continue to have too much power after Roe v. Wade. In her 1993 confirmation hearing she stated: “Roe v. Wade was as much about a doctor’s right to practice his profession as about a woman’s right.” Roe gave the medical profession the right to determine the fetal viability, and it also gave the state the right to intervene in the third trimester.

Although Ginsburg’s argument brought the focus back to where she thought it belonged, namely the woman’s right to choose birth or not, it still, like most pro-choice positions, does not address the rights of the fetus. If the fetus is a person, it, too, would be protected under the 14th Amendment.

In previous columns I have written about the history of abortion, and our ethical, legal, and religious traditions have held that the conceptus is not a person. The conceptus is not an embryo until it is implanted in the womb, the embryo is not a fetus until 10 weeks, and the fetus is not a baby until it is born. Therefore, doctors who perform abortions are not “baby killers.”

English Common Law, which our founders would have followed, stated that the fetus was not a person until it “quickened” in the womb. Catholic philosophers have called this “animation,” when the fetus comes alive, and medical scientists have determined that this can happen between 16 and 25 weeks. Fetal viability comes at the end of this period.

As I have written previously, but obviously need to repeat, animal fetuses quicken in the womb, they have beating hearts, they feel pain, and they have brain waves. The chimp fetus looks just like a human one, so laws that force a woman to look at an ultrasound of her fetus prove nothing.

Anti-abortionists claim that they have science on their side when they claim that humans have a unique identity at conception, but animals have this, too. Furthermore, up to 16 weeks the human conceptus has the potential to twin, so it is clear that genetic identity is not personal identity. The technology of cloning makes this point dramatically: every human cell (same genetics) could produce a myriad of persons.

I believe that there are no criteria, other than religious belief, that can be used to establish a moral right to life for humans that we cannot give to animals. Common legal ground, however, is found in laws that protect animals from unnecessary pain. The consensus among medical scientists is that the human fetus does not feel pain until the end of the second trimester.

It’s not too late to celebrate the anniversary of Roe v. Wade and a woman’s right to choose, and I also challenge all of us to have a more consistent pro-life position.

Nick Gier of Moscow is University of Idaho professor emeritus and he can be reached at Read his article on abortion at

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