And not simply in the way of laws. Think ofwhat this body puts out, think of the massive regulations put outby the agencies. Even at the court level, each year the courtsproduce more volumes of the Federal Reporter than they did theyear before. There was a day—when I was in law school and, later,when I was a law clerk—when I skimmed all the Federal advancesheets, the F.Supp.'s and the F.2d's. That would be impossible forme to do nowadays. I can just about manage U.S. Law Week eachweek.Yes, we continue to make more and more law, both in the legislaturesand the courts, and the agencies produce more than both ofthose put together.

I always suspected that those who came in numberone in their class at Harvard or Columbia did things like that,but I didn't know. [Laughter.]You have attracted some attention by observing with regard toRoe v. Wade that perhaps a different portion of the Constitutionmay well deserve attention with regard to that question; specifically,if I understand your articles correctly, the equal protectionclause of the Constitution rather than the right to privacy evolvingfrom the due process right contained in the 14th amendment.Would you share with us a description of how your writings drawa relationship between the right to choose and the equal protectionclause?

I will be glad to try, Senator. May I say firstthat it has never in my mind been an either/or choice, never onerather than the other; it has been both. I will try to explain howmy own thinking developed on this issue. It relates to a case involvinga woman's choice for birth rather than the termination ofher pregnancy. It is one of the briefs that you have. It is the caseof Captain Susan Struck v. Secretary of Defense (1972). This wasCapt. Susan Struck's story.She became pregnant while she was serving in the Air Force inVietnam. That was in the early 1970's. She was offered a choice.She was told she could have an abortion at the base hospital—andlet us remember that in the early 1970's, before Roe v. Wade(1973), abortion was available on service bases in this country tomembers of the service or, more often, dependents of members ofthe service.Capt. Susan Struck said: I do not want an abortion. I want tobear this child. It is part of my religious faith that I do so. However,I will use only my accumulated leave time for the childbirth.I will surrender the child for adoption at birth. I want to remainin the Air Force. That is my career choice.She was told that that was not an option open to her if shewished to remain in the Air Force. In Captain Struck's case, we arguedthree things:First, that the applicable Air Force regulations—if you are pregnantyou are out unless you have an abortion—violated the equalprotection principle, for no man was ordered out of service becausehe had been the partner in a conception, no man was ordered outof service because he was about to become a father.Next, then we said that the Government is impeding, withoutcause, a woman's choice whether to bear or not to bear a child.Birth was Captain Struck's personal choice, and the interferencewith it was a violation of her liberty, her freedom to choose, guaranteedby the due process clause.Finally, we said the Air Force was involved in an unnecessary interferencewith Captain Struck's religious belief.So all three strands were involved in Captain Struck's case. Themain emphasis was on her equality as a woman vis-a-vis a manwho was equally responsible for the conception, and on her personalchoice, which the Government said she could not have unlessshe gave up her career in the service.In that case, all three strands were involved: her equality right,her right to decide for herself whether she was going to bear thechild, and her religious belief. So it was never an either/or matter,one rather than the other. It was always recognition that one thingthat conspicuously distinguishes women from men is that onlywomen become pregnant; and if you subject a woman to disadvantageoustreatment on the basis of her pregnant status, whichwas what was happening to Captain Struck, you would be denyingher equal treatment under the law.Now, that argument—that discrimination, disadvantageoustreatment because of pregnancy is indeed sex discrimination—wassomething the Supreme Court might have heard in the Struck case,but the Air Force decided to waive her discharge. Although the AirForce had won in the trial court and won in the court of appeals,the Supreme Court had granted certiorari on Captain Struck's petition.At that point, perhaps with the advice of the Solicitor General,the Air Force decided it would rather switch than fight, andCaptain Struck's discharge was waived. So she remained in theservice, and the Court never heard her case.In the case the Court eventually got, one less sympathetic on thefacts, the majority held that discrimination on the basis of pregnancywas not discrimination on the basis of sex. Then this body,the Congress, in the Pregnancy Discrimination Act, indicated thatit thought otherwise.The Struck brief, which involved a woman's choice for birth,marks the time when I first thought long and hard about this question.At no time did I regard it as an either/or, one pocket or theother, issue. But I did think about it, first and foremost, as differentialtreatment of the woman, based on her sex.

I can see how the equal protection argumentwould apply to a policy that interfered with her plan to bear thechild. Could that argument be applied for someone who wished tohave the option of an abortion as well? Does it apply both to thedecision to not have an abortion, as well as the decision to havean abortion, to terminate the pregnancy?

The argument was, it was her right to decideeither way, her right to decide whether or not to bear a child.

In this case, am I correct in assuming that anyrestrictions from her employer to that option, or to that right,would be constrained by the equal protection clause?

Yes. In the Struck case, it was a woman'schoice for childbirth, and the Government was inhibiting thatchoice. It came at the price of an unwanted discharge from serviceto her country. But you asked me about my thinking on equal protectionversus individual autonomy. My answer is that both are implicated.The decision whether or not to bear a child is central toa woman's life, to her well-being and dignity. It is a decision shemust make for herself. When Government controls that decision forher, she is being treated as less than a fully adult human responsiblefor her own choices.

I also appreciate that you simply presented thisnot as the only approach, but as an option that was looked at.With regard to the equal protection argument, though, since thismay well confer a right to choose on the woman, or could, wouldit also follow that the father would be entitled to a right to choosein this regard or some rights in this regard?

That was an issue left open in Roe v. Wade(1973). But if I recall correctly, it was put to rest in Casey (1992).In that recent decision, the Court dealt with a series of regulations.It upheld most of them, but it struck down one requiring notice tothe husband. The ruling on that point relates to a matter the chairmanraised earlier.The Casey majority understood that marriage and family life isnot always all we might wish them to be. There are women whosephysical safety, even their lives, would be endangered, if the lawrequired them to notify their partner. And Casey, which in otherrespects has been greeted in some quarters with great distress, answereda significant question, one left open in Roe; Casey held aState could not require notification to the husband.

I was concerned that if the equal protection argumentwere relied on to ensure a right to choose, that looking fora sex-blind standard in this regard might also then convey rightsin the father to this decision. Do you see that as following logicallyfrom the rights that can be conferred on the mother?

I will rest my answer on the Casey decision,which recognizes that it is her body, her life, and men, to that extent,are not similarly situated. They don't bear the child.

SO the rights are not equal in this regard, becausethe interests are not equal?

It is essential to woman's equality with manthat she be the decisionmaker, that her choice be controlling. If youimpose restraints that impede her choice, you are disadvantagingher because of her sex.Consider in this connection the line of cases about procreation.The importance to an individual of the choice whether to beget orbear a child has been recognized at least since Skinner v. Oklahoma(1992). That case involved a State law commanding sterilizationfor certain recidivists. Sterilization of a man was at issue inSkinner, but the importance of procreation to an individual's autonomyand dignity was appreciated, and that concern applies to menas well as women.Abortion prohibition by the State, however, controls women anddenies them full autonomy and full equality with men. That wasthe idea I tried to express in the lecture to which you referred. Thetwo strands—equality and autonomy—both figure in the full portrayal.Recall that Roe was decided in early days. Roe was not precededby a string of women's rights cases. Only Reed v. Reed (1971) hadbeen decided at the time of Roe. Understanding increased over theyears. What seemed initially, as much a doctor's right to freely exercisehis profession as a woman's right, has come to be understoodmore as a matter in which the woman is central.

I was just concerned that the use of the equalprotection argument may well lead us to some unexpected conclusionsor unexpected rights in the husband.You had mentioned earlier, I thought, a very sage observation,that provisions that, if I remember your words correctly, provisionsthat limited opportunities have been sometimes cast benignly as favors,that we ought to take a new look at these things that arethought as favors in the past. I think that is a fair comment anda very keen observation.I guess my question is: If you look at these provisions of law thattreat women differently than men and decide that they genuinelyare favorable, not unfavorable, or practices that are favorable, notunfavorable, does this then mean that they are not barred?