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Reproductive Rights

Further Readings

The term "reproductive rights" is commonly understood to refer to legal developments in the area of abortion. When the term is employed the first thoughtthat often comes to mind is "abortion rights." Abortion issues certainly fallwithin the general category of reproductive rights and, indeed, have attracted the most attention from the media, the legal community, and the public ingeneral. However, there are a host of other important issues related to "reproductive rights." Contraception, sex education, condom availability programs,involuntary sterilization, surrogacy, and in-vitro fertilization are issuesthat have been taken up in the courts expanding the range of "reproductive rights" implicit in the Constitution.
Until the mid-1800s abortion was not a crime in this country. However, by thebeginning of the 1900s, it was banned in every state. In 1930, approximately800,000 abortions were performed illegally, resulting in an annual death toll of approximately 8,000 to 17,000. Griswold v. Connecticut (1965) represented the first major development in reproductive rights. In Griswold the Court ruled a Connecticut statute that prohibited both married and unmarried couples from using contraceptives unconstitutional. Griswold was important because it marked the first time the Court acknowledged a "rightto privacy" in the Constitution. Although the case dealt specifically with "marital privacy," the ruling would have far reaching effects for subsequent right to privacy issue--including reproductive rights. All subsequent reproductive rights defined by the courts owe their origin, directly or indirectly, toGriswold, which codified the notion of a right to privacy in America's legal system for the first time. In Eisenstadt v. Baird (1972), consistent with Griswoldthe Court extended the right to use contraceptivesto single people. These initial reproductive rights victories laid the foundation for a constitutional challenge to the abortion ban in 1973.
In Roe v. Wade, (1973) the U.S. Supreme Court found that the fundamental constitutional right to privacy applied to the right to procure an abortion. The Court found the right "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The Texas statute that was challenged in Roe prohibited abortions any time during the first trimester except in cases that threatened the life of the mother. The Court found that statutes that prohibited abortions were in violation of the Equal Protection Clause of the Fourteenth Amendment. In addition, the Court settled the previously undetermined issue of viability; the Court established that a fetus was considered to be a "viable" human at about 24-28 weeks. States were permitted toregulate abortions after viability in order to protect the life of the fetusunless the procedure was necessary to preserve the life or health of the mother.
A Succession of Court Battles
In Bigelow v. Virginia (1975) the Court invalidated a Virginia statutethat prohibited the use of abortion service advertisements. A year later thelandmark case, Planned Parenthood of Central Missouri v. Danforth (1976), invalidated a statutory provision requiring unmarried minors to obtain the written consent of one parent before obtaining an abortion. The statute was invalidated because it did not allow for alternatives to parental consent such as a judicial waiver. Similarly, the Court invalidated provisions of a Missouri statute that required a married woman to obtain consent from her husband to obtain an abortion, a physician to preserve the life and health of a fetus at every stage of pregnancy, and prohibited the use of saline amniocentesis as a method of abortion.
Although, opponents to abortion lost the battle over the legality of the procedure they held out hope that access to the procedure could be curtailed by limiting public funds for abortions. In 1976 Congress passed the Hyde Amendment which banned the use of Medicaid and other federal funds for nearly all abortions. Shortly thereafter a series of Supreme Court decisions upheld the principle behind the Hyde Amendment. Maher v. Roe (1977), Beal v. Doe (1977) and Poelker v. Doe (1977), upheld the prohibition of publicfunds to provide abortions not deemed "medically necessary."
In 1979 the Court reaffirmed its ruling in Planned Parenthood of Central Missouri v. Danforth which held that unmarried minors cannot be required to obtain parental consent to have an abortion. In 8-1 vote, the Court invalidated a Massachusetts law requiring parental consent to an abortion for a minor in Bellotti v. Baird II. The Bellotti ruling was important for several reasons. Initially, the Court objected to states requiring parentalconsent for abortions because the Missouri statute did not allow for a judicial waiver to stand in lieu of written parental consent. In Bellotti the Court decided that states could not require parental consent for minors even if a statute allowed room for a judicial waiver to override the absence ofconsent. The judicial waiver in question would have allowed a minor to havean abortion in the absence of parental consent if she adequately demonstratedmaturity in court. Four justices ruled the judicial waiver process unconstitutional because it would have required prior parental consultation. Four other justices ruled the statute unconstitutional on the grounds that the principle of allowing a third party, a parent or a judge, to determine whether a minor was mature enough to seek an abortion was flawed. However, in their decision, the Court left the door open for states to enforce parental consent for minors without violating the Constitution. In his opinion Justice Blackmun confessed that the Court was not persuaded that forcing parental consent "unconstitutionally burdened a minor's right to seek an abortion."
In H. L. v. Matheson (1981) the Court upheld a state statute that required a doctor to "notify, if possible" the parents of a minor before an abortion is performed. However, in 1983, the Court invalidated provisions of an Ohio statute which would have required parental notification and consent, doctors to make sure that minors seeking an abortion were "truly informed," and a24 hour waiting period for minors in Akron v. Akron Center for Reproductive Health. Then, in 1990, the Court resolved the issue of parental consentby offering two opinions consistent with Blackmun's ruling in Bellotti. In Hodgson v. Minnesota the Court upheld a statute that prohibitedminors from seeking an abortion unless both parents have been notified 48 hours prior to the procedure. Similarly, in Ohio v. Akron Center for Reproductive Health the Court upheld an Ohio statute that required one parent tobe notified prior to administering an abortion to a minor. As a result of these rulings, over 30 states now require either parental notice or consent fora minor seeking an abortion.
In the 25 years since Roe v. Wade, abortion opponents have managed toimpose legal restrictions designed to limit the frequency of the procedure. Opposition to abortion seems to be gathering momentum. In 1983, the U.S. solicitor general began urging the Supreme Court to overturn Roe v. Wade. In addition, the persuasion of the Supreme Court has been slowly drifting toward conservatism. During the Reagan and Bush administrations, both of whom opposed abortion, five Supreme Court justices were appointed (Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas).
The Court showed its conservative leaning in Webster v. Reproductive Health Services (1989). Here, the Court expanded the opportunity for states toregulate abortions and fell one vote short of overturning Roe. The Webster ruling upheld provisions of a Missouri statute that prohibited the use of public facilities or personnel to perform abortions, and required aphysician to perform tests to determine the viability of a fetus beyond the20 week mark. After this ruling, Utah, Louisiana, and the territory of Guam enacted statutes that prohibit virtually all forms of abortions.
When the Supreme Court agreed to review Planned Parenthood of SoutheasternPennsylvania v. Casey in 1992, it was essentially faced with the proposition of affirming or overturning its decision in Roe. Although the Court did not overturn Roe, it granted the states considerable latitude to regulate abortions. Most importantly, the Court's ruling in Casey permitted states to regulate abortions prior to "viability," provided that suchregulations did not impose an "undue burden" on a mother seeking an abortion. Under the "undue burden test," stringent state regulations can exist withinthe framework of the Constitution as long as they do not place a "substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."Although the Court expanded the states regulatory capacity in Casey, it did not prohibit abortions. Since 1992, the Court has been less willing togrant full briefings and oral argument in abortion cases. Prior to the Casey ruling only three states enforced three or more restrictions on abortions. In 1998, the number of states enforcing three or more restrictions had risen to 17. Moreover, since Casey, the number of states enforcing mandatory waiting periods before obtaining an abortion rose from zero to 12 and the enactment of consent or mandatory parental notice laws for minors has increased from 17 to 30. The Court was initially liberal in its application of the right to privacy to abortion practices. However, since Roe Supreme Court decisions have generally restricted reproductive rights in the area of abortion.
Abortion-Related Legislation Becomes a Must
In 84 percent of U.S. counties no physicians are willing to perform an abortion. Between 1977 and 1994 more than 2,500 bombings, arsons, blockades and episodes of vandalism were directed at abortion clinics. In response to these acts of violence, Congress passed The Freedom of Access to Clinic Entrances Actof 1994 (FACE). This statute prohibits the use or threats of force, physicalobstruction, and property damage directed at people obtaining or providing reproductive care. In 1996, Congress passed a bill prohibiting state medical schools from requiring abortion training and threatened withdrawal of federaland state funding from such programs.
In 1997, Congress passed legislation, the Partial Birth Abortion Ban of 1997,which prohibited physicians from performing certain abortion procedures. President Clinton vetoed the bill on the grounds that it did not contain provisions for performing the procedures to preserve a woman's health--provisions which were established in prior decisions of the Supreme Court.
There is evidence to suggest that opposition to abortion practices is growing. Some anti-abortion groups have even tried to justify terrorism to discourage the practice. In 1997, for example, the National Organization for Women filed a class action lawsuit under the Racketeer Influenced and Corrupt Organizations Act. In National Organization for Women, Inc. v. Scheidler, a state court rejected the defendants' claim that their "moral imperative" to stop abortion made terrorism necessary and acceptable. More recently, Congress drafted the Child Custody Protection Act of 1998, which would prohibit the transport of a minor across state lines for an abortion unless the minor had already fulfilled the requirements of her home state's parental involvement law.
A Constant Threat
In May of 1998, in accordance with the 1997 Wisconsin Act 219, doctors in Wisconsin stopped performing abortions and women choosing to terminate their pregnancies were forced to cross state lines to do so. The law defined the beginning of human life at the point of conception and imposes a life sentence forabortion providers in Wisconsin. A federal trial is scheduled to test the law's constitutionality. Requests from abortion providers to have the courts issue temporary restraining orders, which would allow access to abortion services while the law is being challenged, have been denied.
The outcome of the legal challenge to the Wisconsin statute will have a tremendous impact on the extent to which other states restrict abortions and it may well result in the reversal of Roe v. Wade. In addition to Wisconsin's challenge to Roe, Congress is expected to override President Clinton's veto of the Partial Birth Abortion Ban of 1997 in the fall of 1999.
Contraception Rights
Though far less devisive than abortion, the regulation of contraception use has been the focus of heated legal debate. In 1965, Griswold v. Connecticut set the precedent for legal debate over contraception rights. In Griswold the Court ruled that states cannot prohibit married couples from using contraceptives. In Eisenstadt v. Baird (1972), consistent with theGriswold decision, the Court invalidated a law that prohibited the distribution of contraceptives to unmarried individuals. The decision extended the constitutional right to privacy to unwed individuals. Likewise, in 1977, the Court struck down a New York law that prohibited the sale or distributionof contraceptives to minors in Carey v. Population Services International. Each of these cases served to broaden reproductive rights in the area ofcontraceptive use.
Since Carey, changes in the congressional climate have brought about new rulings which challenge old precedents. In July of 1998 the House Appropriations Committee, by a 32-24 vote, gave approval to an amendment requiring teens seeking prescription contraception at Title X family planning clinics tohave parental consent or to have clinics notify parents five business days inadvance of providing such products. Despite the fact that most health insurance plans provide coverage for prescription drugs, the majority exclude coverage for prescription contraceptives. In addition, while most insurance planscover routine outpatient surgeries, elective sterilization procedures are usually not covered.
Surrogacy and In-vitro Fertilization
Legal issues related to surrogacy and in-vitro fertilization have been addressed by the courts on a case by case basis. In 1985, William and Dr. ElizabethStern contracted with Mary Beth Whitehead to be a "surrogate mother." Underthe terms of the contract, Whitehead would be artificially inseminated with Stern's sperm making Whitehead the child's biological mother. Whitehead agreedto give the child to the Sterns after giving birth, relinquishing her parental rights. The Sterns agreed to pay Whitehead $10,000 plus her medical bills.
When the child was born, Whitehead refused to give the child to the Sterns. The Sterns sued for custody. The case, which became known as In re Baby M, was publicized nationwide in the mid-1980s. The New Jersey State SupremeCourt ruled that the contract was invalid. The court ruled that payment to a"surrogate mother" was illegal because it constituted child selling and granted parental rights to Mr. Stern and Mrs. Whitehead.
Since both William Stern and Mary Beth Whitehead had parental rights to BabyM, the court had to resolve the issue of custody in accordance with the bestinterests of the child. When a court order gave Stern temporary custody of Baby M, Whitehead and her husband fled with the baby. Because of the Whiteheads' behavior and financial instability, the court awarded custody to Mr. Stern.However, Mrs. Whitehead was granted visitation rights.
Early in 1999, a California appellate court ruled on the highly publicized "parentless child" case. In In Re Marriage of Buzzanca, a married couple, John and Luanne Buzzanca, arranged a surrogacy contract in which an anonymous egg and sperm were implanted in a surrogate mother's womb.
One month before the child's expected birth, the Buzzancas separated and petitioned for divorce. When the child (Jaycee) was born, the hospital released the child to Luanne Buzzanca in accordance with the surrogacy contract. She then filed for child support payments from John Buzzanca. He convinced the trial court that support payments could not be ordered because the baby was not the "child of the marriage" pursuant to California Family Code Section 2010. The appellate court disagreed and ordered the family law court to determine anappropriate child support order. After a three year battle, the appellate court ruled that John Buzzanca and Luanne Buzzanca are the legal parents of Jaycee.
The appellate court in Buzzanca relied on Johnson v. Calvert (1993), in which the California Supreme Court first upheld the legality of a gestational surrogacy contract. The Johnson case ruled that, according to the California Uniform Parentage Act, both the intended mother and the gestational mother could establish parentage. The intended father was also ruleda potential parent by the action of entering into the surrogacy agreement. The court explained that: "John admits he signed the surrogacy agreement, whichfor all practical purposes caused Jaycee's conception every bit as much as if he had caused her birth the old fashioned way."
In Moschetta v. Moschetta (1994), a surrogate mother was artificiallyinseminated with the sperm of the intended father. The surrogate was the biological mother as well as the birth mother, and sought custody after the intended father left her with the child. The court did not recognize the surrogacycontract as an advance waiver of the surrogate's parental rights and lookedinstead at the parties' intent at the time of the contract to determine parental rights.
Reproductive rights related to surrogacy and in-vitro fertilization often involve legal and ethical issues which the courts cannot address with broad rulings. The particularities of the cases usually dictate the rulings. Other reproductive rights issues such as abortion and the use and dissemination of contraceptives lend themselves to more definitive judgments by the courts. As newmedical technologies are developed, the courts will continue to be called upon to resolve complex legal issues related to reproductive rights.

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