Reproductive rights are an umbrella term for many topics that traditionally relate to women’s sexual health as well as women’s rights to reproduce. Many uphold these as a subset of human rights.
In the U.S., some human rights are completely protected and entrenched in society. Reproductive rights, however, have been hotly debated due to the perceived moral, political, and religious thought that can accompany the topics of family planning, birth control, a woman’s right to her body, etc. As science and technology change our relationship with what is possible within reproductive rights, the field continues to be emotionally and politically charged.
In California, reproductive rights are reflected in both federal and state laws, court decisions, and legal precedents. Yet the field continues to experience a lot of tumult, as various groups protest and fight for whether abortion, birth control, and the woman’s right to decide should be a political or legally protected issue.
At San Diego Family Law Attorney, we are experienced in navigating the nuances of reproductive rights in California. If you are seeking support or legal action around your rights, we can help you navigate your options. We include the information below as a current overview of reproductive rights. Still, this information is not legal advice. Only an experienced lawyer can provide legal counsel upon understanding your situation.
What are reproductive rights?
The World Health Organization (WHO) is the leading international organization for health around the world. They define reproductive rights by first determining health: health is not merely the absence of disease or mental or physical weakness. Instead, health is a state of complete well-being for a human, including mental, physical, and social well-being.
The WHO extends this definition to reproductive health by saying that reproductive health isn’t merely the absence of sexually-related diseases or other sexual health weaknesses. Instead, it refers to a woman’s capability, responsibility, and freedom to have a safe and satisfying sex life, including when and how frequently to have sex and whether to procreate. The WHO explicitly states that this includes:
- The rights of women to be aware of and to have access to choose affordable, safe, effective, and affordable fertility regulations.
- The rights of women to procreate and experience a safe pregnancy and childbirth in order to provide couples and individuals the best change for raising a healthy child
While this is a worldwide definition for reproductive health, reproductive rights can vary from country to country. Here are some examples of what may or may not be included under the umbrella term reproductive rights:
- The right to access good, safe reproductive healthcare
- The right to access education in pursuit of free, informed reproductive choices, which may include education on reproduction, sexually transmitted dieases and infections, etc.
- The right to choose whether, when, and how to family plan and procreate
- The right to birth control
- The right to safe and legal abortion
- Freedom from sterilization or contraception that is forced, mandated, or otherwise coerced
- Freedom and protection from forced sexual practices such as female genital mutilation (FGM)
Importantly, research shows that reproductive rights, understood as such, are vital to the overall health and the socioeconomic well-being of women. Indeed, women who are able to decide about their own reproductive health and whether and when to enter into parenthood more often experience the following:
- More stability and satisfaction in relationships
- More work experiences
- Increased wages and average career earnings
Reproductive rights in the U.S.
In the United States, many reproductive rights are protected at the federal level, such as abortion and the right to publically funded birth control for lower-income women. Other practices that may be common in other countries, such as forced sterilization or forced sexual practices like female genital mutilation, are not widespread problems in the United States, even if they are not explicitly prohibited by law.
Importantly, though, state and local laws can further address or have an impact on reproductive rights. In the U.S., reproductive rights are generally understood as the ability to decide whether and when to have children. But subsets of this definition can vary locally, such as birth control, abortion, access to contraceptives, the rights of parents, and sex education in public schools.
Women’s reproductive rights exist regardless of their age, which means that even under the age of consent (18 on the national level), women have the legal protection to decide about topics concerning their reproductive rights. State by state, however, this can vary as consent requires and/or parental notification may restrict reproductive rights or require a parent’s involvement. Local laws that restrict the reproductive freedoms of women under the age of 18 can have the effect of preventing women from their fully-entitled rights.
Local laws often provide guidance on whether sex education in public schools is mandatory, and if it is, what must be taught. For instance, some states may teach an “abstinence only” program which promotes men and women waiting until they are married to have sex, often because sex may be seen purely for procreating. Other local laws may indicate that if public schools do teach sex education, they must include more comprehensive methods, such as covering various types of contraception.
Still, many issues are currently up for debate or have recently been decided in the U.S. courts. While employer-sponsored healthcare insurance typically provides some or all of the cost of birth control, a 2014 Supreme Court decision determined that closely held companies can refuse to provide birth control coverage as part of their healthcare insurance programs if the action goes against the company’s religious beliefs.
What laws protect reproductive rights?
Unlike some human and civil rights that are protected by the U.S. Constitution and subsequent laws or statues, there are no explicit laws or statures that protect reproductive rights in the United States. Instead, the U.S. Supreme Court has ruled on many cases that recognize and underscore reproductive rights as a personal and fundamental right. The Supreme court has protected personal rights around procreation, contraception, family relations, child rearing, and abortion (the right to choose). The well-known case of Roe v. Wade, which protects a woman’s right to legally access a safe abortion in the early months of a pregnancy, also draws on the 14th Amendment in the Constitution, which protects a person’s privacy.
California reproductive rights
States can have their own laws that provide further protection in reproductive rights. Common issues regarding reproductive rights in California include:
- Birth control and access to contraception
- Sex education in public schools
Abortions in California
In California, abortions are legal per federal law. Statewide abortion laws are considerably less restrictive than in other states in that California does not impose long waiting periods, of-age consent requirements, and severe facility codes.
California state law defines a legal abortion as any medical treatment that is intended to induce the termination of a woman’s pregnancy, but the treatment cannot produce a live birth. The law further allows doctors, nurse practitioners, nurse midwives, physicians’ assistances, and other non-physician medical professional who have the proper training to perform the procedure legally in hospitals that have approved of the medical procedure.
An illegal abortion is one that is performed by someone other than indicated above and in a manner that is not consistent with hospital or medical facility procedures.
The state does, however, require any minors (under the age of 18) who are not emancipated from their legal parents or guardians to obtain parental consent before having an abortion.
While California law upholds rights around legal abortion, that doesn’t always mean they are available to all women. In fact, 45 percent of California’s 58 counties do not have an abortion provider, which means women seeking one in those counties must travel beyond their county to obtain an abortion.
Birth control in California
Typically speaking, healthcare insurance provides access to common types of birth control including hormonal birth control. Per the U.S. Supreme Court decision in 2014, however, some employers may choose to limit birth control access in their employer-sponsored healthcare insurance programs if it goes against the religious beliefs of the company. In such instances, the women may have to seek alternate methods of procuring birth control, whether pay paying out of pocket or seeking a more affordable sliding scale pay option such that Planned Parenthood and similar facilities may provide.
A recent state law, enacted in 2016, gives pharmacists in California the right to issue hormonal birth control without a physician’s prescription. It is not an over the counter prescription, where anyone can walk into the pharmacy to purchase it. Instead, women can request birth control at the pharmacy and pharmacists administers a questionnaire that is intended to raise any health concerns.
California public schools and sex education
California public schools must teach sex education to students in grades 7-12 per a 2015 law known as the California Healthy Youth Act.
Schools are required to comply with the state definition of sexual health education as a comprehensive education regarding human development and sexuality. This can include education regarding pregnancy, family planning, and sexually transmitted diseases as well as sexual assault and sexual harassment. By noting that the education must be comprehensive, schools must teach various methods of sexual health, not limited to only abstinence (not having sex) until marriage. This includes various methods of contraceptives, for both women and men, as well as abortion. Schools are also required to teach specific HIV and AIDS prevention education, which includes the nature of the disease, how it is transmitted, strategies to lower risk, and related public and social health issues.
Prior to the recent law, schools we not required to teach sex education, but if they did, law mandated that it must be comprehensive. Interestingly, a 2003 research study indicates that well over 95 percent do teach it but a further study, in 2011, indicated that 42 percent of school districts were not teaching about FDA-approved contraception methods. Only one-quarter of California school districts were educating students about emergency contraception.
The California Healthy Youth Act, then, became a way to ensure all students were receiving the same education state wide, in an effort to improve sex education literacy and reduce high rates of teenage pregnancy and sexually transmitted infections such as gonorrhea and chlamydia.
Experts point out a problem with this new law, however: The State of California has no way to ensure that schools are complying. This can continue to lead to an uneven approach to sex education for students, both male and female.
Reproductive rights for women and men
Because of the nature of reproduction, these rights are often considered a women’s issue.
Still, national organizations do focus on the men’s side of reproductive rights. Topics may include adoption, false paternity, rights over frozen embryos, and abortion decisions. Importantly, the Equal Protection Clause, which is encompassed in the 14th Amendment, says that men are financially obligated to their children. The U.S. Supreme Court defended that clause when determining that a man does not have the right to turn down financial obligations for an unwanted child.
Men’s responsibilities around reproductive rights are also controversial. As federal law holds up legal abortions for women, some men’s activist groups argue that men should have the right to help reach a decision, such as birth control, should their partner be pregnant. Male groups also argue that there are unfair double standards when it comes to divorce and child support, indicating that more women than men initiation divorces in “no fault” states, including California. This could mean that men are not given equal partnership in deciding whether and when to have a child as well as equal rights upon a divorce or separation to child custody.
If you are seeking to understand your reproductive rights, contact San Diego Family Law Attorney. We have experience helping women and men across the greater San Diego region and we will guide you through your legal rights and options. Contact us today to get started – simply call 619-610-7425.