Reproductive Rights: Law and History

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. And 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 the influence of prevailing social mores, religious doctrines, 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 in hostility toward "immoral" sexual behavior. Moreover, some lawmakers believed procreation between married couples was the only reason to engage in sex. As a result, this led to the "Comstock laws" which banned the use or dissemination of contraceptives and birth control information.

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

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:

  1. A long and successful anti-abortion campaign led by physician members of the American Medical Association; and
  2. Population fears 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 a woman's right to abortion was protected under the Constitution once and for all.

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 health and size of their family through birth control, she fought for contraceptive education and counseling by publishing a series of articles, among other things, entitled “What Every Girl Should Know” in 1916 (deemed obscene according to the Comstock Act.)

Later, she 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

State Abortion Regulations

Federal lawmakers have since restricted federal funding of abortions and some state legislatures have restricted access to abortion by requiring parental consent for minors, counseling, waiting periods, strict licensing requirements for facilities, and other strict mandates.

In 1992, the Supreme Court (Planned Parenthood v. Casey) struck down a number of state regulations on abortion, including spousal consent, by creating an "undue burden" standard. However, the case also upheld several other regulations, including parental consent for minors and certain facility reporting requirements.

In 2016, the Supreme Court 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.

RU-486 and Emergency Contraceptives

The Food and Drug Administration's 2000 approval of the abortion drug RU-486, which aborts 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, establishing personhood for unborn fetuses.

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.

Next Steps

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