What Are Reproductive Rights?
Reproductive rights are a class of human rights associated with reproductive health and autonomy. They may include the right to plan a family. They may also include the right to use birth control and receive sex education in public schools. In addition, these rights can include the right to end a pregnancy and gain access to reproductive health services. The legal contours of these rights vary widely across the world.
Conflicting views regarding birth control often lead to emotionally and politically charged controversy. These views are often influenced by political, ethical, and religious stances. Conflicting views on abortion and family planning also often lead to controversy. The resulting debate touches on some of the most sensitive issues in society. For example, the most controversial aspect of the reproductive rights debate in the United States has long been abortion.
Read on for a basic introduction to reproductive rights and their basis in law, including:
- Where Do Reproductive Rights Come From?
- The Abortion Debate: 'Pro-Life' vs. 'Pro-Choice'
- Do Men Have Reproductive Rights?
- Do Minors Have Reproductive Rights?
- Reproductive Rights as Rights to Self-Determination
Again, reproductive rights are a diverse subset of human rights. To understand how these rights work legally, it is useful to start with a distinction between “negative" and “positive" rights.
Negative rights focus on freedom and liberty. They can be expressed as a right to be left to one's own devices. For example, freedom of speech is a negative right to express oneself openly, freely, and without sanction. By contrast, positive rights entitle you to a certain benefit. Further, they imply a government duty to provide that benefit. For example, the right to a minimum education implies a duty to provide that education.
How does this translate to reproductive rights? Much of the debate surrounding reproductive rights focuses on personal liberty. Such personal liberties involve the right to make your own choices when it comes to reproduction (i.e., a negative right). Thus, though the U.S. Constitution does not make specific reference to reproductive rights, the Supreme Court has read the document to limit government interference with things like procreation (Skinner v. Oklahoma), contraception (Eisenstadt v. Baird), family relationships (Prince v. Massachusetts), and child rearing (Pierce v. Society of Sisters).
Though the Constitution focuses heavily on protecting negative rights, it creates few duties to provide government benefits. The Constitution does not create a positive right to information, for example. It also does not create a positive right to resources. At the same time, it does not create positive rights to facilities associated with reproduction. For example, though Eisenstadt stopped the government from outlawing contraceptives, it did not create a duty to provide contraceptive methods to the public.
The positive right to “reproductive health care services, and goods, and facilities" is well-recognized in international human rights law. For example, the Office of the United Nations High Commissioner for Human Rights (OHCHR) explains that these benefits must be:
- Provided in adequate numbers;
- Accessible physically and economically;
- Accessible without discrimination; and
- Of good quality
Even so, international compliance with these standards varies widely.
Abortion is the single most controversial issue involving reproduction in the United States. On one hand, “pro-choice" advocates argue that the right to abortion falls within the right to control your own body. They believe the medical decision to end a pregnancy should rest with the patient and her doctor. On the other, “pro-life" advocates argue that an unborn fetus is a living being at the moment of conception. They believe that abortion should be restricted to protect a fetal right to life.
No matter which side of this debate you resonate with most, any discussion of abortion rights in the United States must include a discussion of Roe v. Wade (1973) and Dobbs v. Jackson Women's Health (2022). The landmark Roe decision held that pregnant women have a right to an abortion. This right is itself based on a broader right to privacy found in the Due Process Clause of the Fourteenth Amendment. The case also held that the right must be balanced against the government's interest in protecting women's health. It also held that it must be balanced against the government's interest in protecting prenatal life. This decision was controversial from the beginning. Pro-life advocates criticized it for its perceived activism. Pro-choice advocates also criticized it for not going far enough.
In Planned Parenthood v. Casey (1992), the Supreme Court reaffirmed the “essential holding" of Roe. It held that it is unconstitutional for the government to create laws with "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." (Nonviability refers to a fetus' ability to survive outside of the womb.) Specifically, the Court struck down a state law requiring that pregnant women receive spousal consent prior to an abortion. However, the Court also made it easier for the government to restrict legal abortions. It did so by replacing Roe's strict-scrutiny standard with a more lenient undue-burden standard.
Despite these holdings, the abortion debate remained heated. It boiled over thirty years later when the Court reversed course entirely by overturning Roe and Casey. In Dobbs v. Jackson Women's Health Organization (2022), the Court held that the Constitution actually does not create a right to an abortion.
In doing so, the Court handed the power to create abortion laws—whether restrictive or permissive—back to the states. In some states, “trigger laws" immediately stopped abortion providers from continuing their services. Women in these states must now seek legal abortion services by traveling out of their home states. In other states, abortion laws are still in flux as a result of Dobbs. For more, see FindLaw's state-by-state guide to abortion laws. While the Supreme Court reversed Dobbs last year, and while it can be more difficult to obtain an abortion, abortion care is still an option.
Under federal law, there is no outright ban on abortions. After Dobbs, it's just a matter left up to the states. As was mentioned a moment ago, universal abortion bans are not in effect across every jurisdiction. You can still obtain in-clinic medication abortions. You can still do these things under many pregnancy-related circumstances and in many states. There are increased restrictions. But if you reside in a state where you cannot obtain an abortion, you can still travel across state lines.
Understandably, reproductive rights are often treated as a subset of women's rights. Reproductive justice is often a focus of women's rights. Equality organizations also seek to dislodge entrenched inequalities between men and women. It also makes sense practically. It makes this kind of sense because pregnancy impacts maternal health much more than paternal health. After decades of advocacy, a woman's legal right to make her own reproductive choices is now viewed by many as a cornerstone of women's rights.
Given this backdrop, the issue of whether men also have reproductive rights can be ideologically divisive. That said, certain reproductive rights do not differentiate on the basis of sex and gender. Perhaps the most prominent example is the issue of forced sterilization. This occurred during the eugenics movement in the United States and abroad. This movement claimed that sterilization could improve “public health." It also claimed to eliminate “undesirable" segments of a population. It discriminated against people with disabilities. But the historical movement was often driven by ethnic and socioeconomic prejudice.
In Skinner v. Oklahoma (1942), the Supreme Court held that the forced sterilization of Hubert Moore, a five-time convict deemed a “habitual criminal," was unconstitutional. The Court ruled this because Oklahoma law made an exception for those convicted of white-collar crimes. More recently, there is also evidence of forced sterilization of women as a method of reducing sexually transmitted infections. Examples of these infections include HIV/AIDS in marginalized populations abroad. Forced sterilization has not been fully outlawed in the United States. But it is internationally recognized as a violation of many human rights (e.g., the right to be free from torture).
The fact that biological males cannot experience pregnancy differentiates many of the reproductive rights of males and females. This has not stopped certain groups from arguing that men should also have reproductive rights. An example of such a group is National Center for Men. These groups have argued this when it comes to things like false paternity, adoption, abortion, and control over frozen embryos.
In the particularly infamous case of Dubay v. Wells (2007), a father argued that the Equal Protection Clause gave him the right to not pay child support for an unwanted child. (Prior to intercourse, the mother claimed she was unable to get pregnant due to infertility.) The father argued that he could refuse unwanted fatherhood just as a mother could refuse an unwanted pregnancy. Though the court rejected the father's claims, the case is now often praised and derided as "Roe v. Wade for Men."
In the United States, the power to govern the sexual and reproductive health and rights of minors is mostly in the hands of the states. Again, the Supreme Court's decision in Dobbs has left state laws governing reproductive rights in flux. Perhaps the most emblematic example of the resulting controversy regarding the reproductive rights of minors is the case of a 10-year-old girl in Ohio. In this case, she traveled across state lines to abort a pregnancy caused by rape. The heartbreaking case has become a flashpoint in the national debate over abortion.
Setting this case aside, a majority of states have parental notification and consent requirements restricting abortion access for minors. Indeed, these notification requirements were among the abortion restrictions the Supreme Court upheld under the now-overturned standard applied decades ago in Casey. Despite their longstanding nature, many healthcare providers concerned with the reproductive rights and well-being of minors have opposed these and other laws restricting minors' reproductive freedoms.
Gender equality, as it comes up within the scope of abortion rights, is not an issue people fully appreciate for its political consequences. Many pro-choice advocates connect the right to self-determination and the right to an abortion. At the same time, access to abortions tends to be a luxury not as accessible to people of color. It is often the case that historically marginalized groups have less access to proper health care. While communities that have historically been less disenfranchised reap the benefits of access to information and resources for abortion care, people of color have often not had these same opportunities. So, the issue of access to abortion has a racial facet to it.
In many cases, the person who carries a fetus to term and raises a child must make sacrifices. They must use their emotional and physical resources solely upon child-rearing tasks. Or at least they must sacrifice so much time devoting themselves to a child that they cannot pursue opportunities that they otherwise would. If someone does not choose to have a child and is forced to carry a fetus to term, there can be grave consequences for a person's right to self-determination. There also are consequences for their right to make choices for themselves entirely in the way that they should be entitled.
At the same time, a forced pregnancy or limitations on a person's ability to choose can have severe health and social consequences. A person's mental health can suffer tremendously from lacking body autonomy. For example, in cases where a fetus is carried to term, and the parents are either disinterested in raising the child or lack the resources to do so, the child can suffer. In addition (while this is less of an issue), opening the floodgates to restricting abortion rights might ultimately pave the way for eliminating rights to terminate pregnancies when the person carrying the child is at risk as a result of the pregnancy. Maternal mortality is a serious issue. Interfering with a person's ability to make the best decisions for their health could result in death. This is a fundamental issue that always needs to be emphasized.
Disparities between the biological make-up of those assigned male at birth and those assigned female at birth should not dictate whether a person has access to the right to self-determination. Those that are biologically capable of carrying a child should not have unequal opportunities to exercise themselves in the world and their rights. However, if abortion is not an option, people with the biological capacity to carry a child will necessarily have this responsibility. This is solely because of factors beyond their control—their inherited sex at birth.
In Texas and other red states, it has historically been a problem for people to engage in the right to self-determination. Such places have tried to pass laws making access to abortion more difficult. But always remember that you can leave the state where you live to travel elsewhere to get an abortion. In many states, such as New York and Illinois, there are far fewer restrictions on access to abortion than elsewhere. Many conservatives have claimed that abortion medications are unsafe, though the FDA has indicated that abortion medications can be “safely" used to terminate pregnancies. It's important for you to get the most accurate health information, particularly when so many politically-motivated falsehoods surround the issue of how safe abortions can be.
What Are Your Reproductive Rights? Get Answers From a Lawyer Today
Reproductive rights have long been one of the most controversial social issues in the United States. It will likely remain so in the coming years. As the law evolves, parties on both sides of this polarizing debate will continue to bring cases challenging new freedoms and restrictions. Recent changes make this a highly volatile area of law. It is critical to speak with a lawyer as soon as possible if you believe your rights are being violated. A family lawyer in your area can explain your rights under current law.
Can I Solve This on My Own or Do I Need an Attorney?
- The laws surrounding reproductive rights vary by state
- You may need legal help to understand frequent changes to these laws
- An attorney can help you protect your reproductive rights
Get tailored advice about your rights and ask a lawyer questions. Many attorneys offer free consultations.