[Vision2020] Struck v. Defense Department: A better case than Roe v. Wade?
moscowcares at moscow.com
Thu Jan 30 04:57:33 PST 2020
Courtesy of today’s (January 30, 2020) Moscow-Pullman Daily News with special thanks to Nick Gier.
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 equal 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 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. English Common Law, which our founders would have followed, stated that the fetus was not a person until it “quickened” in the womb. This is essentially Roe’s viability criterion.
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 state that humans have a unique identity at conception, but animals have this, too. Furthermore, for 16 weeks the human conceptus has the potential to twin, so it is clear that genetic identity is not personal identity.
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.
Let us celebrate this 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 is University of Idaho professor emeritus and be reached at ngier006 at gmail.com. Read his article on abortion at webpages.uidaho.edu/ngier/abortion.htm.
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