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.

Reproductive Rights Laws

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 doctrine, politics, and activist groups. In 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, however, the tide changed when the country grew in hostility toward sex and "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 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 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 thousands of years in U.S. societies long 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 (arguably to gain exclusive rights to practice abortion procedures), 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 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 – A Reproductive Rights Pioneer

Several years after the Comstock laws took effect, a woman by the name of 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” (deemed obscene in 1912 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 clinic was also shut down in violation of current law.)

After a series of more articles, lectures, publicity and arrests, Margaret Sanger eventually died in September of 1966 – but not before witnessing the legalization of birth control for married couples by the Supreme Court case Griswold v. Connecticut.

Modern Reproductive Rights Legislation

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 and other strict mandates. Federal lawmakers passed the so-called Partial Birth Abortion Ban in 2003, 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 2003 a year later, establishing personhood for unborn fetuses.

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.

Next Steps

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