Medicolegal Issues

The Supreme Court and reproductive rights

Author and Disclosure Information

A case-by-case review of the evolution of reproductive rights leading to the ongoing controversial Texas abortion law and review




There is now great interest in the Supreme Court’s handling of cases that involve a woman’s ability to have an abortion. Recent decisions, and those planned in the next few months will be the source of intense scrutiny. But the Court’s involvement in reproductive rights did not begin with abortion. In fact, the Supreme Court has a long history of controversial decisions dealing with reproductive rights.

Involuntary sterilization

A notable, even infamous, case was Buck v Bell (1927)—later discredited—in which the Court reviewed a state law that provided for the involuntary sterilization of the “feeble minded.”1 The 8-1 decision was that the state could choose to have such a law to protect the so-called genetic health of the state. The law was based on a theory of eugenics. The opinion by the highly respected Justice Oliver Wendell Holmes included the unfortunate conclusion, “Three generations of imbeciles are enough.”2 As mentioned, the law has since been thoroughly discredited. In 1942, the Court did come to a different result, holding in Skinner v Oklahoma that it was unconstitutional for a state to involuntarily sterilize “habitual criminals.”3


Forty years after Buck, in Griswold v Connecticut, the Court reviewed a state law that prohibited the distribution of any drug or device used for contraception (even for married couples).4 In a 7-2 decision, the Supreme Court struck down the state law as violating a marital right of privacy. Beyond its specific holding, Griswold was important in several ways. First, a physician was raising the rights of patients (not specifically his own rights). This is notable because, ordinarily in court, litigants may argue their own rights, not the rights of others. This has been important in later reproductive rights cases because often it has been physicians raising and arguing the rights of patients.

A second interesting part of Griswold was the source of this constitutional right of privacy. The Constitution contains no express privacy provision. In Griswold, the Court found that the 1st, 3rd, 4th, and 9th Amendments create the right to privacy in marital relations. Writing for the majority, Justice Douglas found that “emanations” from these amendments have “penumbras” that create a right of marital privacy.

Although Griswold was based on marital privacy, a few years later, in 1972, the Court essentially converted that right to one of reproductive privacy (“the decision whether to bear or beget a child.”) In Eisenstadt v Baird, the Court held that it was a violation of equal protection (the 14th Amendment) for a state to allow contraception to the married but deny it to an unmarried person.5

Continue to: Abortion...


Recommended Reading

Much lower risk of false-positive breast screen in Norway versus U.S.
MDedge ObGyn
Physicians react: Should docs lose their licenses for spreading false COVID information?
MDedge ObGyn
Common cold could protect against COVID-19, study says
MDedge ObGyn
Prior authorization abuse: It’s time for health insurance CEOs and their proxies to cease and desist the practice once and for all!
MDedge ObGyn
Symptoms common in high-risk, early-stage ovarian cancer
MDedge ObGyn
Increased access to LARC may improve birth outcomes
MDedge ObGyn
The troubling trend of repackaging feminine hygiene products for the next generation
MDedge ObGyn
Urine for a new vaccine alternative
MDedge ObGyn
CDC to update mask recommendations as Omicron spreads
MDedge ObGyn
Quebec plans to fine unvaccinated adults
MDedge ObGyn