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The right of a woman to determine when and how she will give birth, commonly known as reproductive rights, was not legally recognized until the last half of the twentieth century. Reproductive rights includes not only the highly controversial issue of abortion, but also a wide range of other related topics including contraception (preventing pregnancy), sex education, surrogate (substitute) motherhood, in-vitro fertilization ("test tube babies"), condom availability, and sterilization (making incapable of reproduction). Public acceptance of birth control and other measures associated with reproductive choices have changed dramatically through the years in the United States.

Changing Attitudes in the Nineteenth Century

In the early nineteenth century, the average white American woman gave birth to seven children. As the nineteenth century progressed, the American economy changed from a predominately agricultural society with families living and working together on farms to growth of industrial centers involving factory work for husbands. The economic need for large families declined. As a result, scientific information on birth control began to be distributed by social reformers. In addition, few criminal laws existed banning abortion (ending a pregnancy before childbirth by removing the unborn child) and abortion was legal under common law (following common practices rather than laws passed by legislatures). Abortions were commonly associated with disposing of fetuses (unborn child) resulting from rape or conception out of wedlock. They normally were performed in the first four or five months of pregnancy. Abortions, however, were very dangerous to the woman with many left unable to bear children later, or actually dying from the procedure.

As the number of abortions began to significantly increase in the mid-nineteenth century, particularly among white middle-class women, conservatives rallied in opposition to birth control and abortion. They lobbied Congress for laws banning such activities. As a result, Congress passed the Comstock Law in 1873. The law prohibited the distribution of information that promoted methods of preventing pregnancy or that supported abortion. States also began passing laws prohibiting the use of contraceptives. Established in 1847, the American Medical Association (AMA) was interested in driving out of business unlicensed people performing abortions. Joined by religious leaders, they successfully led a campaign outlawing abortion. By the 1880s all states had passed laws banning abortion based on their police powers to regulate public health and safety. All had criminal penalties for persons performing abortions and some even adopted penalties for the women who had the abortions. Abortions were only legal when needed to save the mother's life. These restrictions changed little until the 1960s.

The Long Struggle for Reproductive Rights

Those supportive of birth control options for women began an active campaign in the early twentieth century to end the many prohibitions (forbidden by law) established in the late nineteenth century. Guided by reformer Margaret Sanger, a national movement developed leading eventually to establishment of Planned Parenthood Federation of America in 1942. By the 1960s birth control was legalized in almost all states though the actual distribution of birth control information was still commonly illegal. Many states also loosened their abortion laws to allow abortions when pregnancies resulted from rape or when the fetus likely had a serious birth defect.

The first major U.S. Supreme Court case recognizing reproductive rights came in 1965 in Griswold v. Connecticut. The Court, in recognizing a basic constitutional right to privacy, struck down a Connecticut state law prohibiting married couples from using contraceptives. Seven years later in 1972 the Court extended the right to use contraceptives to unmarried people as well in Eisenstadt v. Baird. Later in 1977 the Court in Carey v. Population Services International extended the right to contraceptive use to minors. The decisions opened the door for providing information to school students in sex education programs and even providing contraceptives.

The landmark Supreme Court ruling in reproductive rights however came in 1973. In the famous Roe v. Wade decision, the Court extended the right to privacy to include the right to abortions as well. A Texas law had prohibited abortions during the first trimester (first three months) of pregnancy except in situations where the mother's life was threatened. The Court ruled this prohibition violated the Equal Protection Clause of the Fourteenth Amendment. In a major determination, the Court wrote that a fetus was not a viable human being (capable of meaningful life after birth) until the third trimester (last three months of pregnancy). Therefore, prohibitions on abortions were not legally appropriate until after that time in a pregnancy. Even at that late point in the pregnancy the state must still make allowance for abortions when necessary to save the mother's life or protect her health.

By recognizing reproductive rights of women, many believed the Court had helped women gain some social and economic equality with men through their ability to control their reproductive processes. Women could pursue professions, like men, largely free of unexpected or unwanted disruptions of child birth or tending to children.

The Abortion Battle Continues in the Courts

The next major ruling in reproductive rights came in Planned Parenthood of Central Missouri v. Danforth in 1976. State law had required minors to obtain written permission from at least one parent and required a wife to obtain permission from a husband before having an abortion. The Court ruled these requirements unconstitutional (not following the intent of the constitution).

After suffering these major defeats in the courts, opponents to abortion adopted a new strategy to combat abortions. Also, many organizations were created opposing such sweeping reproduction rights. Pressing for legislation banning the use of public funds to pay for abortions, they succeeded in having Congress pass a law in 1976 prohibiting the use of federal monies for almost all abortions. The new law was immediately challenged, but the Supreme Court in a series of 1977 rulings held the law as constitutional. Public funds could only be used in situations of clear medical need. In a much bolder move, a constitutional amendment banning abortions was attempted but fell just short of adoption in 1983.

The debate over parental involvement in abortions for minors also continued in the courts. In 1979 in Bellotti v. Baird II the Court further strengthened the 1976 Danforth ruling that had prohibited parental consent requirements in state laws. However, anti-abortion advocates made some gains in 1990 in Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health. In these cases the Supreme Court upheld state laws requiring some forms of parental notification prior to obtaining an abortion, but not requiring parental approval. Most states soon passed laws adopting the parental notification requirements.

Since the Roe v. Wade decision, the debate over abortion rights has continued, even involving several U.S. Presidents encouraging the Supreme Court to reverse its 1973 ruling. In 1989 in Webster v. Reproductive Health Services the Court expanded the right of states to regulate abortions. The ruling upheld a Missouri law prohibiting use of publically funded facilities or personnel to perform abortions and created certain other requirements of the attending doctors. In 1992 the Court accepted another reproductive rights case which many anticipated would lead to a reversal of the Roe decision. However, much to the surprise of many, the Court did not overturn Roe, but did give states more flexibility to regulate abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey the Court ruled that states could regulate abortions prior to fetus viability, but they must not place "undue burdens" on the mother seeking an abortion. A new, weaker standard was created to judge the appropriateness of restrictions on abortions. In sum, since the Roe decision in 1973 the Court has steadily increased restrictions on reproductive rights regarding abortions.

War in the Streets

Violence against abortion clinics escalated in the 1990s involving blockades, arson, bombings, vandalism, and shootings. The anti-abortion organization, Operation Rescue, organized mass demonstrations outside abortion clinics, blocking their entrances and harassing women seeking abortions. Court injunctions (orders) against such activities led to a Supreme Court decision. In Schenck v. Pro-Choice Network of Western New York (1997) the justices identified the types of restrictions lower court judges could apply to anti-abortion protesters. The Court was attempting to balance free speech rights of the protesters with public safety, property rights, and reproductive rights of those seeking and giving abortions.

In reaction to the violent disruption of legal abortions, Congress passed the Freedom of Access to Clinic Entrances Act in 1994 prohibiting physical threats, blockades, and property damage. Congress also addressed other aspects of abortions. In 1997 it passed the Partial Birth Abortion Ban to prohibit certain types of abortions. But the bill was vetoed by President Bill Clinton over concerns that it did not adequately take into account the mother's safety and health. Abortion rights continued to be a hot topic in Congress.

Artificial Insemination, In Vitro Fertilization, and Surrogacy

Advances in medical technology late in the twentieth century brought new ways of creating pregnancy and with it new legal issues regarding reproductive rights. Artificial insemination involves the sperm of a donor father being medically placed in a woman. This technique not only extended reproductive rights to a woman whose husband may be sterile and cannot produce sufficient sperm, but also to lesbian couples. In vitro fertilization came to the public's attention in 1978 with the birth of the first "test tube child" conceived through the technique. This procedure involves fertilization of a human egg outside the womb and then medically placing the resulting embryo in a woman.

These new forms of conception brought the use of surrogate (substitute) motherhood. The surrogate mother could either be artificially inseminated with sperm from a donor father, or with the fertilized egg cell inserted in her. The surrogate mother then would give custody of the child to the intended parents upon birth. Though initially surrogate mothers were close friends or relatives of the intended parents, by the 1980s contracts with previous strangers became more common.

The first case addressing disputes involving surrogacy came to the courts in 1986 in In re Baby M. William and Dr. Elizabeth Stern had arranged for Mary Beth Whitehead to be a surrogate mother. Whitehead was medically inseminated with Stern's sperm and agreed to give the resulting child to the Sterns after birth. She was to be paid $10,000 in addition to medical expenses. However, upon birth of the baby, Whitehead refused to turn custody of the baby to the Sterns. The New Jersey Supreme Court ruled that such contracts were inappropriate and against the public good. Reproductive rights did not include the right to establish such contracts. Surrogacy by contract, the court asserted, was another form of illegal child selling. However, in the best interest of the child in this instance, the court awarded custody to Mr. Sterns and gave Whitehead visitation rights.

The 1990s brought other complex legal disputes over surrogacy. Determining the true legal parents is one complex issue resulting from the expanded reproductive rights. The California Supreme Court in Johnson v. Calvert (1993) affirmed the California Uniform Parentage Act in which both the intended mother and the surrogate mother could be identified as the legal mother. Also, the intended father could be a legal father. Implications of such rights came up in California a short time later. John and Luanne Buzzanca had anonymous (unknown contributor) egg and sperm implanted in the mother's womb. However, the Buzzanca's divorced shortly before birth of the child and Luanne sued John for child support. John Buzzanca resisted, claiming the child was not a biological product of their marriage. In 1999 in In re Marriage of Buzzanca a California appellate court ruled that Luanne and John were indeed both the legal parents and John was responsible to provide financial child support. Because of the numerous complexities that can result from all different types of parent relationships, the courts have sought to resolve disputes on a case by case basis rather than broad sweeping rulings.

As the twenty-first century began, other complex family law issues faced the courts. Issues involving rights to frozen sperm and eggs, often associated with divorce cases and death of donors, began to occur. Family law appeared to still have plenty of potential for great expansion as reproductive technologies continued to evolve.