Guide to Reproductive Rights in the United States

1. Abortion

Do women have a right to an abortion in the U.S.?

As of June 24, 2022, states may now ban abortions entirely. The U.S. Supreme Court has ruled that the Constitution does not protect abortion rights, and thus states can make any laws related to abortion. In about half of the states, abortions are severely restricted if not completely banned (other than exceptions in the case of rape or incest). In the other states, individuals still have a right to have an abortion. See your state’s abortion laws via the Guttmacher Institute.

[The law prior to June 24, 2022 (No longer valid) was that women had the right to an abortion up until the point when the fetus becomes viable (able to survive outside the womb), which is usually about 6 months after conception. However, a woman may have an abortion at any time, even after viability, if necessary for her life or health.

While the government may place certain regulations on abortion, such as waiting periods, or mandated counseling, these restrictions must not be overly burdensome. For example, a waiting period is considered acceptable as long as it is a reasonable period of time, like 24 hours.

Any laws or government action that violates these rules are struck down as unconstitutional. These rights are based on the important Supreme Court cases of Roe v Wade and Planned Parenthood v Casey, which were decided by applying the due process clause of the 14th Amendment to the U.S. Constitution. Yet rather than the traditional due process question of fair procedures, these cases are based on a concept called substantive due process. This is the idea that the government may not deprive anyone of “life, liberty, or property” without proper justification, regardless of the procedural fairness.]

Why did the Supreme Court Overturn Abortion Rights?

The 1973 Supreme Court decision of Roe v Wade was based on the concept of substantive due process, which, in brief, states that the Constitution protects certain fundamental rights, even if they are not specifically listed in the founding document. The Court in Roe v Wade said abortion was a fundamental right because it was related to the right to privacy and to make decisions about one’s family. In 2022, the Supreme Court’s conservative majority ruled that abortion is not a fundamental right because it has not been historically protected in past centuries.

Is it legal to get abortion pills by mail?

Under federal law, it is legal to obtain abortion pills (aka medication abortion) by mail for pregnancies up to 10 weeks. This can be obtained after an online consultation with a licensed prescriber.

That said, some states are banning abortion pills. It remains to be seen how this conflict of law will be sorted out.

Can a state require anti-abortion centers to provide information on abortion?

Probably not. Requiring these self styled “pregnancy crisis centers” to provide information about the options for women on abortion and other reproductive rights would most likely violate the 1st amendment. But the question has not been fully resolved yet.¹National Institute of Family and Life Advocates vs. Becerra (2018)

Are buffer zones around abortion clinics legal?

No. Abortion opponents have a 1st amendment free speech right to protest or provide “sidewalk counselors” to dissuade women from getting an abortion. “Buffer zones” that require abortion opponents to maintain a certain distance from the facility (e.g. 30 feet), are unconstitutional and cannot be enforced.²McCullen v Coakley (2014)

2. Contraception

Is there a right to obtain and use contraceptives?

The Supreme Court has ruled that the Constitution prohibits states from banning the use of contraceptives, including condoms, birth control pills, IUDs, and tubal ligation or vasectomy.³Griswold v CT However, as of June 24, 2022, the Court has overturned Roe v Wade, which calls into question whether contraceptives are still protected.

Health insurance must generally cover contraceptives for women, although employers with religious objections are exempt.

Do teens have a right to obtain and use contraceptives?

Yes, the Supreme Court said the Constitution protects the right of minors to have access to contraceptives.⁴Carey v. Population Services International (1977)

3. Sex Education & Abstinence

Is sex education provided in all schools?

Only 24 states plus Washington, DC require sex education to be provided in schools. See more at the Guttmacher Institute.

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