Reproductive Rights: Law and History
By Laura Temme, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last reviewed July 29, 2022
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Procreation -- or the ability to reproduce offspring -- is as basic as human life itself. Even so, the decision whether to procreate, or bring a pregnancy to full term, was not always a constitutionally protected right given to couples who engaged in sexual activity. It remains a controversial subject, mired in politics, and one that is still developing.
Learn about the history of reproductive rights law below, including information about abortion access, contraceptives, and related matters.
Reproductive Rights Laws: Basics
State and federal laws concerning a person's reproductive rights have fluctuated widely over the past few centuries -- largely due to varying social norms, religious beliefs, politics, and activist groups. In the early 18th century, for example, women had open access to reproductive planning methods, including the use of contraceptives and other forms of birth control, as well as access to legal abortions.
Later in the century, the tide changed when 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," which banned the use of contraceptives and prohibited doctors from providing information about birth control.
It wasn't until 1965 that the U.S. Supreme Court struck down a law prohibiting the use of contraceptives to prevent pregnancy in Griswold v. Connecticut -- thereby allowing 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 the guarantee of equal protection under the 14th Amendment.
Reproductive Rights Law and Abortion
Abortion has been the single most contentious issue in the history of reproductive rights and has represented some of the greatest legal challenges. Abortions, for example, were legal and had been performed for many years before the Constitution was adopted.
However, two main events led to the criminalization of abortions over time:
- A long and successful anti-abortion campaign led by physician members of the American Medical Association; and
- Fear among some of the population that children of arriving immigrants would dominate the country and, thereby, dilute the existing birth rates of Anglo-Saxon children.
The landmark Roe v. Wade ruling by the Supreme Court in 1973 overturned state laws that criminalized abortions and, for the first time, determined that the right to abortion was protected under the Constitution. In Roe, the court found that abortion was covered by the fundamental right to privacy discussed in other reproductive rights cases.
However, in 2022, the United States Supreme Court overturned nearly 50 years of precedent that protected access to abortion as a constitutional right when it overruled Roe v. Wade in Dobbs v. Jackson Women's Health. Pro-choice advocates criticized the decision for rolling back reproductive freedoms generations of women have come to depend on. 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.
Margaret Sanger and the Reproductive Rights Movement
Several years after the Comstock laws took effect, Margaret Sanger founded the women's reproductive rights movement. Believing that it was essential for women to have the ability to control their reproductive health care and the size of their family through birth control, she fought for contraceptive education and counseling by publishing a series of articles entitled “What Every Girl Should Know" in 1916. The Comstock Act deemed Sanger's articles “obscene."
Later, Stanger opened the first U.S. birth control clinic in New York to educate men and women on family planning and other reproductive birth control techniques (which was shut down in violation of the law at the time). This clinic and other organizations she helped start eventually would evolve into Planned Parenthood.
After a series of more articles, lectures, publicity, and arrests, Sanger eventually died in September of 1966, but not before witnessing the legalization of birth control for married couples (Griswold). While Sanger is heralded as a pioneer in the reproductive rights movement in America, she is not without critics — who argue that she held questionable views relating to race and eugenics.
Modern Reproductive Rights Legislation
Federal lawmakers have since restricted federal funding of abortions. For example, federal Medicaid funds cannot be used for abortion services except in cases of rape or incest or if the pregnant person's life is at risk.
Some state legislatures have restricted access to abortion by requiring parental consent for minors, counseling, waiting periods, strict licensing requirements for abortion providers, and other strict mandates.
In 1992, the Supreme Court struck down a number of state abortion laws, including spousal consent, by creating an "undue burden" standard in Planned Parenthood v. Casey. However, the case also upheld several other regulations, including parental consent for minors and certain reporting requirements placed on health care providers.
In 2016, another Supreme Court decision struck down parts of a Texas law that would have required abortion clinics to meet the same standards as walk-in emergency clinics, in addition to abortion doctors having admitting privileges in nearby hospitals.
However, states could reinstate these sorts of restrictions now that Roe v. Wade has been overturned.
RU-486 and Emergency Contraceptives
The Food and Drug Administration's 2000 approval of the abortion drug RU-486, which ends pregnancies within the first seven weeks after conception, illustrates the growing complexity of the reproductive rights debate. While those in favor of a woman's right to end an unwanted pregnancy saw RU-486 as a way to avoid aborting a fetus, those opposed to ending the life of an unborn child at any stage of development were concerned the drug would make abortion an easy, casual act.
However, RU-486 has been largely supplanted by the emergency contraceptive mifepristone (sold over-the-counter as Mifeprex), which 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, banning 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 health of the mother.
Congress passed the Unborn Victims of Violence Act of 2004 a year later, which recognized fetuses as legal victims if they are killed or injured during the commission of certain violent crimes. However, states are still struggling to define fetal personhood.
Access to Birth Control and Religious Freedom
Craft retailer Hobby Lobby argued in front of the Supreme Court that employers shouldn't be forced 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 requiring coverage of women's reproductive health services (including birth control medications).
The Supreme Court sided with Hobby Lobby when it issued its opinion in 2014. The decision is limited to "closely held corporations," the first time the Court has recognized a religious belief claim by a for-profit corporation.
Get Up to Speed on Reproductive Rights Law: Call an Attorney
Since reproductive rights have been a moving target in the United States for a long time, it can be difficult to fully understand what rights you actually have. Also, they may vary by state. If you have questions about reproductive rights laws or need to file a lawsuit, you should contact a family law attorney near you for assistance.
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Contact a qualified family law attorney to make sure your rights are protected.