Reproductive Rights: Law and History

Procreation has been at the center of much legal controversy for as long as collective memory can recall. And the decision whether to procreate, or bring a pregnancy to full term, is no longer a constitutionally protected right.

Learn about the history of reproductive rights law below. Continue reading for more information about abortion access, abortion rights, contraceptives, and related matters.

Reproductive Rights Laws: Overview

State and federal laws on a person's reproductive rights have fluctuated widely over the past few centuries. These fluctuations have occurred largely due to varying social norms. They have also occurred due to religious beliefs, politics, and activist groups.

For example, in the early 19th century, women had access to reproductive planning methods. These methods included the use of contraceptives and other forms of birth control. They also included access to legal abortions.

Later in the century, the country grew more hostile toward "immoral" sexual behavior. Moreover, some lawmakers believed procreation between married couples was the only reason to engage in sex. This led to the "Comstock laws."

The Comstock Laws banned the use of contraceptives. They also prohibited doctors from providing information about birth control.

It wasn't until 1965 that the U.S. Supreme Court struck down a law prohibiting contraceptive use to prevent pregnancy in Griswold v. Connecticut. This allowed married couples to make educated decisions about family planning.

The Supreme Court extended this right to single people in Eisenstadt v. Baird, basing its decision on guaranteeing equal protection under the 14th Amendment.

And in 2022, the U.S. Supreme Court overturned Roe v. Wade, eliminating constitutional protections for access to abortion care. It is now left up to the states to decide whether someone can legally have an abortion.

Margaret Sanger and the Reproductive Rights Movement

Margaret Sanger founded the women's reproductive rights movement shortly after the Comstock Laws took effect. Sanger believed that it was essential for people to control their reproductive health care. She also believed that they had the right to control the size of their family through birth control. She fought for contraceptive education and counseling by publishing a series of articles in 1916, "What Every Girl Should Know."

Sanger later opened the first U.S. birth control clinic in New York. The clinic educated people on family planning and other reproductive birth control techniques. It was shut down in violation of laws at the time. This clinic and others eventually became Planned Parenthood.

Sanger died in September 1966. By her death, birth control for married couples was legal. Sanger is heralded as a pioneer in the reproductive rights movement in America. But she is not without critics, arguing that she held questionable views on race and eugenics.

Reproductive Rights Law and Abortion

Abortion rights have been the most contentious issue in the history of reproductive rights. It has represented some of the greatest legal challenges the modern United States has faced. Interestingly, abortions were legal and performed for many years before the U.S. Constitution.

An anti-abortion campaign led by physician members of the American Medical Association was one of the factors leading to the eventual criminalization of abortion.

The landmark Roe v. Wade ruling by the Supreme Court in 1973 overturned state laws that criminalized abortions. And for the first time, it was determined that the right to abortion was protected under the Constitution.

In Roe, the Court found that the Constitution protects the fundamental right to privacy. It said this right to privacy protects abortion rights. This right is also a topic in other reproductive rights cases.

Abortion Regulation After Roe v. Wade

In the years following Roe, federal lawmakers restricted federal funding of abortions. For example, a person cannot use federal Medicaid funds for abortion services except in cases of rape or incest or if the pregnant person's life is at risk.

Some state legislatures also restricted access to abortion. Restrictions include:

• Requiring parental consent for minors
• Counseling requirements for pregnant women seeking abortion care
• Waiting periods — requiring women to wait for abortion access in the hope they'll reconsider
• Strict licensing requirements for abortion providers

State lawmakers also passed a variety of other strict mandates.

In 1992, the Supreme Court struck down several state abortion laws in Planned Parenthood v. Casey. The laws struck down included spousal consent by creating an "undue burden" standard. But the case also upheld several other regulations, including:

• Requiring parental consent for minors receiving abortions
• Reporting requirements placed on health care providers

In 2016, another Supreme Court decision struck down parts of a relevant Texas law. This law would have required abortion clinics to meet the same standards as walk-in emergency clinics. It also subjected abortion doctors, who had admitting privileges in nearby hospitals, to these standards.

But since the Dobbs v. Jackson case overturned Roe, states could reinstate these restrictions.

In 2022, the U.S. Supreme Court overturned nearly 50 years of precedent that protected access to abortion care as a constitutional right. This happened when SCOTUS decided Dobbs v. Jackson Women's Health.

Pro-choice advocates criticized the decision to roll back reproductive freedoms. Many people biologically capable of reproduction had for generations depended on these protections.

Supporters of the decision claim that the regulation of abortion should stay in the hands of state governments. Now, state legislatures must decide whether and to what degree abortion should be available.

RU-486 and Emergency Contraceptives

The Food and Drug Administration's 2000 approval of the abortion drug RU-486 illustrates the growing complexity of the reproductive rights debate. This drug ends pregnancies within the first seven weeks after conception. This was the first medication abortion the FDA approved.

Those favoring a woman's right to end an unwanted pregnancy saw RU-486 as a way to avoid aborting a fetus. Those opposed to ending a pregnancy at any stage of development believed the drug would make abortion an easy, casual act.

The emergency contraceptive mifepristone has largely supplanted RU-486. This is sold over the counter as Mifeprex. It prevents the fertilized egg from attaching to the uterine wall, thus preventing conception entirely. Still, access to the drug remains controversial.

Partial Birth Abortion and Fetal Personhood

In 2003, federal lawmakers passed the so-called Partial Birth Abortion Ban. This law banned a particular type of abortion procedure deemed unconscionable by abortion opponents. Abortion rights supporters decried the law's lack of an exception to preserve the mother's health.

Congress passed the Unborn Victims of Violence Act of 2004 a year later. This law recognized fetuses as legal victims if they were killed or injured during the commission of certain violent crimes. But, states are still struggling to define fetal personhood.

Access to Birth Control and Religious Freedom

Craft retailer Hobby Lobby argued before the Supreme Court that employers shouldn't have to pay (through health insurance benefits) for services or procedures that go against their "deeply held religious beliefs."

In this case, Hobby Lobby was challenging a provision of the Affordable Care Act. The part of the Act the group challenged required coverage of women's reproductive health services. In particular, the group took issue with coverage of birth control medications.

The Supreme Court sided with Hobby Lobby when it issued its opinion in 2014. The decision only allows "closely held corporations" to deny birth control. It was the first time the Court had recognized a religious belief claim by a for-profit corporation.

Get Up to Speed on Reproductive Rights Laws

Since abortion laws have been a moving target in the United States for a long time, it can be difficult to fully understand your Constitutional rights. Also, they may vary by state.

If you have questions about reproductive rights laws or need to file a lawsuit, contact a family law attorney near you for help. Remember that abortion is not illegal everywhere in the United States, even after the Supreme Court ruling in 2022. It is still possible to get an abortion in many places across the United States.