Sex can occur without reproduction and reproduction without sex, but the two are closely linked—in biology, that is, but not in U.S. constitutional law. There are many instances in which sexual relations do not lead to pregnancy (for example, same-sex couples, older couples, and couples using highly effective forms of contraception), but the reverse is rarely true. What’s more, because only 1 percent of pregnancies in the United States originate from artificial insemination or in vitro fertilization, the vast majority are the result of heterosexual intercourse. But one would never know that from reading the leading reproductive rights cases in American jurisprudence.
Despite the biological connection between sex and pregnancy, the rights to access contraception and abortion services are largely unmoored from a right to engage in intimate sexual behavior. Instead, sexual rights have been developed primarily through the lens of same-sex relations, which are non-procreative. Reproductive rights, in contrast, have developed from the acknowledgment of the profound consequences that pregnancy presents for women’s lives and health.
Global advocates in the field of sexual and reproductive health and rights reject this unnatural separation of sexual rights and reproductive rights and situate the right to access contraception and abortion in an intertwined web of sexual and reproductive rights. That the field is referred to as “sexual and reproductive health and rights” captures the connection between sex and reproduction and the separate but related concepts of health rights and autonomy rights.
Those promoting this integrated and human rights framework do not shy away from advocating a forthright acceptance of sexuality as a value in and of itself and a component of women’s empowerment. For example, the World Health Organization (WHO), while disclaiming an official position, sets forth on its Web site a vision of sexual rights as human rights that includes the right of all persons, free of coercion, discrimination, and violence, to “pursue a satisfying, safe and pleasurable sexual life.” WHO, www.who.int/reproductivehealth/topics/gender_rights/sexual_health/en. The International Planned Parenthood Federation asserts that “sexuality, and pleasure deriving from it, is a central aspect of being human, whether or not a person chooses to reproduce.” Sexual Rights: An IPPF Declaration (2008). American jurisprudence stands in stark contrast to these affirmations. It recognizes the right to prevent the consequences of sexual relations, but, except in the context of marriage, not the right to have those relations per se.
Reproductive Rights Develop Unmoored from Sex
For brevity of expression, this article will use the term “reproductive rights” interchangeably with “the rights to access contraception and abortion,” although reproductive rights are much broader and include the right to have children and thus not to be subjected to forced or coerced sterilization, contraceptive use, or abortion. Indeed, the first Supreme Court case on reproductive rights was Skinner v. Oklahoma, 316 U.S. 535, 536 (1942), which struck down forced vasectomies as criminal punishment and recognized “the right to have offspring” as “a sensitive and important area of human rights.”
Reproductive rights also includes the right to access assisted reproductive technologies, reproductive and sexual health information, and essential obstetrics care, without which women run the risk of death in connection with pregnancy. Reproductive rights are also implicated by forced pregnancy as a consequence of rape. This article examines reproductive rights in the context of preventing or terminating unintended pregnancies that occur as a result of consensual sex.
Constitutional law on the right to access contraception is more than four decades old, and Roe v. Wade, 410 U.S. 113 (1973), recently passed the thirty-seven-year mark. In this jurisprudence, the Supreme Court has largely avoided language suggesting that sexual rights underlie reproductive rights, except with respect to married couples. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court held that married couples had a constitutional right to use contraception within a “zone of privacy,” which encompasses the “marital relationship.” Id. at 485. The Court focused on the special nature of the marital relationship, which is “intimate to the degree of being sacred” and “an association for as noble a purpose as any involved in our prior decisions.” Id. at 485. Sexual relations are theorized as inherent to the marital relationship. Thus, at the time, there was no legal concept of marital rape, and refusal to engage in sexual relations was a basis for divorce. In his concurrence, Justice Arthur Joseph Goldberg explicitly limited Griswold to marital intimacy, noting that the government had the “power . . . to forbid extra-marital sexuality.” Id. at 499.
But the right to use contraception could not be limited to married couples or even adults given the heavy burden of pregnancy on women’s health and lives. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Supreme Court extended the right to use contraceptives to unmarried individuals, which required that the Court find grounds other than the sanctity of marriage for doing so. In a sleight of hand, the Court explained that a married couple is not an “independent entity,” but rather two individuals with separate minds and emotions. Without further development, the Court then pronounced: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. at 453. Eisenstadt thus dodged the question of a right to sexual intimacy.
The transition from a zone of privacy based on the marital relationship to a zone of privacy protecting the “decision whether to bear or beget a child” was a crucial one on which the Court’s later jurisprudence on abortion would depend the following year. Five years later, the Court struck down New York’s ban on the sale of contraceptives to minors under sixteen, again stressing the importance of “the right to privacy in connection with decisions affecting procreation.” Carey v. Population Services International, 431 U.S. 678, 693 (1977). However, it by no means recognized a right for minors to engage in sexual activity—in fact, it validated New York’s interest in curbing teenage promiscuity. But it found it “plainly unreasonable” for the government to “prescribe pregnancy and the birth of an unwanted child (or the physical and psychological dangers of an abortion) as punishment for fornication.” Carey, 431 U.S. at 694 (quoting Eisenstadt, 405 U.S. at 448).
Having chosen to avoid the road of sexual rights in connection with contraception, the Court, unsurprisingly, was not willing to go down it in the abortion context, where the stakes are higher on both sides. In nonmarital contraception cases, the state’s interest is in discouraging sex among unmarried adults and minors. In Roe v. Wade, the state’s interest is a weightier one of protecting developing life. But the woman’s interest is weightier too: the health and life consequences of pregnancy, particularly in light of the reality that women were dying from botched illegal abortions at the time. These heavy costs were so substantial that the Court did not need to engage in the question of a right to have sex to decide that, previability, the ultimate decision to terminate a pregnancy is between a woman and her doctor. The Roe Court reiterated that the right to privacy encompasses “activities relating to marriage, family relationships, and child rearing and education,” and then held it is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id. at 153–54. There is no exploration, however, of the role of sexual intimacy in this privacy right. Rather, the Court highlights the considerable burdens the government would impose on women if they were compelled to continue an undesired pregnancy:
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. Id. at 153.
When the Supreme Court revisited and revised the Roe framework in Planned Parenthood v. Casey, 505 U.S. 833 (1992), it used lofty rhetoric about the importance of the right to abortion in allowing women to control their destiny, but that destiny centers around their health, family size, and life’s work, not their sexuality. Casey describes the “private realm of family life” as “matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” and characterizes them as “central to the liberty protected by the Fourteenth Amendment.” Id. at 850. It explains that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id.
In the end, though, the opinion reaffirms the abortion right as an extension of the right to contraception. See id. at 852−53. As in Roe, the Court respects a woman’s “urgent claim[ ] . . . to retain the ultimate control over her destiny and her body,” id. at 869, because “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear,” id. at 852. The woman’s concept of existence, meaning, and the universe does not appear to include her vision of the role sexuality plays in her life.
Sexual Rights Emerge Without Recognition of a Right to Sex
In the Supreme Court’s first case to posit a direct constitutional right to the free exercise of sexuality, Bowers v. Hardwick, 478 U.S. 186 (1986), it harshly rejected a “claimed constitutional right of homosexuals to engage in acts of sodomy.” Id. at 190–91. In explaining why this right was not related to the rights at issue in Griswold, Eisenstadt, and Roe, among others, the Court explained that “[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” Id. at 191. The Court flatly rejected the claim that “these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” Id.
Justice Harry A. Blackmun’s dissent in Bowers comes close at points to articulating a constitutional protection for sexual rights, but it is one that focuses on the role of sexuality in larger relationships and in society. In a footnote concerning the importance of “homosexual orientation” to a person’s identity, it notes that “[a]n individual’s ability to make constitutionally protected decisions concerning sexual relations is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy.” Id. at 203 n. 2. The dissent connects the decision to marry or have a child with the formation of personal identity and notes that
“[o]nly the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.” Id. at 205. In essence, there is a “fundamental interest all individuals have in controlling the nature of their intimate associations with others.” Id. at 206.
In a valentine to liberty, the Court overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and rejected its formulation of the issue, explaining that “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 567.
The Lawrence Court, like the dissenters in Bowers, recognized sexual intimacy as the bedrock of a broader sphere of personal intimacy and relations that should be protected: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. at 567. The Court did allow that there was “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” id. at 572, but in general it relied on more sweeping statements about the import of sexual behavior and its place in the private realm of family life, see, e.g., id. at 577.
Just as the right in question had to do with relationships, so too did the harm: Rather than frame the harm as simply the inability to have the kind of sex one desires with another consenting adult, both the majority opinion and Justice Sandra Day O’Connor’s concurrence focused on the stigmatic harms of the statutes, which brand homosexuality as a crime and might lead to intolerance and discrimination in other areas of life. See, e.g., id. at 575, 581.
Even when dealing with an explicitly sexual right, the Supreme Court has been willing to recognize such a right only by relating it to a more elevated realm of interpersonal relationships, thus validating sexual rights only insofar as they support this larger nonsexual goal. On the issue of access to contraception and abortion, the Court rests its constitutional protections on the burdens of pregnancy on a woman’s health and life path. This, of course, has the advantage of avoiding the fraught terrain of moral judgments about sex, but it obscures the fact that sexuality is a central component of being human and the ways in which societal suppression of women’s sexuality in particular has been used to disempower women.
Norwegian State Secretary Gry Larsen captured the human rights understanding of sexual self-determination and dignity in a speech she gave in November 2009 at a meeting of Nordic development agencies and experts in the field of sexual and reproductive health and rights. She explained that while women’s right to control fertility with access to contraception and abortion was important, it was not sufficient in realizing the broader vision of sexual and reproductive health and rights. She noted that another key element is “women’s right to control their own sexuality.” She went on to explain that “[t]his means that sexuality should not be linked to fertility alone but also to pleasure.”
It is difficult to envision American political leaders, let alone the Supreme Court, talking about sexual pleasure as a human right any time soon. But the larger vision of an interrelated set of sexual and reproductive rights will continue to develop in ways that can provide an intellectual framework to influence the current siloed approach to these unquestionably interrelated human experiences.