Reproductive rights are a class of human rights associated with reproductive health and autonomy. They may include the right to plan a family, use birth control, receive sex education in public schools, end a pregnancy, and gain access to reproductive health services. The legal contours of these rights vary widely across the world.
Conflicting views regarding the ethical, moral, and religious status of things like birth control, abortion, and family planning often lead to emotionally and politically charged 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.
Where do Reproductive Rights Come From?
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 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).
However, though the Constitution focuses heavily on protecting negative rights, it creates few duties to provide government benefits. In other words, the Constitution does not create a positive right to information, resources, and 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.
Looking beyond the Constitution, 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 (1) provided in adequate numbers, (2) accessible physically and economically, (3) accessible without discrimination, and (4) of good quality. Even so, international compliance with these standards varies widely.
The Abortion Debate: “Pro-life” vs. “Pro-choice”?
Abortion is the single most controversial issue involving reproduction in the United States. On one hand, “pro-choice” advocates argue that the right to an 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. 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. However, the case also held that the right must be balanced against the government’s interest in protecting women’s health and prenatal life. This decision was controversial from the beginning. Where 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. That is, 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 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 travelling 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.
Do Men Have Reproductive Rights?
Understandably, reproductive rights are often treated as a subset of women’s rights. Reproductive justice is often a focus of women’s rights and equality organizations, which seek to dislodge entrenched inequalities between men and women. It also makes sense practically, since 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 associated with the eugenics movement in the United States and abroad. This movement promoted sterilization as a way to improve “public health” and eliminate “undesirable” segments of a population. In addition to discriminating against people with disabilities, 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 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 (e.g., HIV/AIDS) in marginalized populations abroad. Though forced sterilization has not been fully outlawed in the United States, it is internationally recognized as a violation of many human rights (e.g., the right to be free from torture).
Of course, the fact that biological males cannot experience pregnancy differentiates many of the reproductive rights of males and females. This has not stopped certain groups (e.g., the National Center for Men) from arguing that men should also have reproductive rights 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.”
Do Minors Have Reproductive Rights?
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 who travelled 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.