Pregnancy Justice and Justice Ginsburg’s Unfinished Work

Picture: Lynn M. Paltrow with Ferguson Plaintiff Paula Hale
at the U.S. Supreme Court

Dear Friends and Allies,

I learned that Justice Ruth Bader Ginsburg had died when Rabbi Sharon Kleinbaum announced this loss at the end of Rosh Hashanah high holiday services at CBST. My wife and I “attended” services by zoom. Like most of you reading this email, we were devastated, not only by the loss of this extraordinary woman, but also by the new threat to the survival of our constitutional democracy now that there is the possibility of another Trump appointment to the U.S. Supreme Court.

Over the years, and primarily because of the Women’s Law and Public Policy Program, I have had several opportunities to be in small meetings and seminars (tea) with Justice Ginsburg. One of these times was immediately following a Supreme Court oral argument on a case I had filed, helped to try and continued to work on after starting Pregnancy Justice; Ferguson v. City of Charleston. We won that case with Justice Ginsburg among the six- member majority. That was the case challenging the Medical University of South Carolina’s policy targeting Black pregnant patients and secretly searching them for evidence of drug use. If they tested positive, hospital staff turned their confidential medical information over to the police and coordinated their arrest. These patients were taken out of the hospital in chains and shackles, some still pregnant, others still bleeding from just having given birth. While the holding of the Supreme Court decision is typically squeezed into a narrow legal box, I think of it as one that stands for the broad proposition that all pregnant patients, including Black ones, are fully protected by the 4th Amendment’s prohibition on unwarranted searches and seizures.

As many people know by now, in her early years, Ruth Bader Ginsburg brought the challenge that resulted in the Supreme Court's first decision recognizing that the Fourteenth Amendment's equal protection clause applies to women and prohibits discrimination (at least sometimes) on the basis of sex. That case, Reed v. Reed, successfully challenged an Idaho state law that specified that "males must be preferred to females" in appointing administrators of estates. The decision held that the law's preference for men was arbitrary and unconstitutional.

That decision, however, was just the beginning. Justice Ginsburg knew that full protection for women under the equal protection clause would not exist unless the Courts recognized that the Constitution also prohibited discrimination based on the capacity for pregnancy and pregnancy itself. So, she looked for and found a case that would expose and address this discrimination. That case was Struck v. Secretary of Defense.

Susan Struck was serving as a Captain in the U.S. Air Force, when, as a single woman, she became pregnant. The Air Force, however, had a strict rule: terminate the pregnancy or face immediate discharge. It was a perfect case for exposing the scope of the government power to control and coerce women because of their reproductive capacity. Indeed, thousands of women were thrown out of the US military because they continued their pregnancies to term.

Although Ginsburg lost her challenges to the policy in the lower federal courts, the U.S. Solicitor General believed the Air Force might lose in the Supreme Court. As a result, he advised the military to withdraw Captain Struck’s discharge and to change the rule so that pregnancy would no longer be automatic grounds for discharge. That is what the Air Force did, making the case “moot” and preventing it from continuing and being decided by the Supreme Court.

Why do I tell you all this? Because that Court has still not recognized that government efforts to control and coerce women in relationship to their pregnancies and pregnancy outcomes — including abortion — are prohibited by the Fourteenth Amendment’s equal protection clause. It is why so many prosecutors and legislators believe there are no constitutional limits on their power to use pregnancy as a basis for locking-up women. It is why Pregnancy Justice must continue to fight on behalf of so many people including Latice Fisher and Chelsea Becker.

As someone who considers herself a “daughter-in-law” of Justice Ginsburg, I will continue to be part of that fight. And in these times when it is so easy to despair and to focus on division, I ask you to continue to fight not only in memory of Justice Ginsburg, a white, Jewish woman, but also the extraordinary, brilliant Black lawyer and theologian Pauli Murray who developed the legal strategy Ginsburg used to persuade the Supreme Court to recognize that the Fourteenth Amendment’s Equal Protection Clause protects women as well as men.

What can you do to carry on the work Murray and Ginsburg started? Today, contact your Senator (888-521-6658) and say don’t let Trump and McConnell ram through a Supreme Court nominee who doesn’t respect precedent (e.g. Roe v. Wade) and who will vote to rip healthcare away from millions in the middle of a pandemic.

In solidarity,

Lynn M. Paltrow
Founder and Executive Director
Pregnancy Justice