The Common Law History of Unwed Motherhood and the Right to Procreation

Lauren Gilbert, To Procreate or not to Procreate: A Right to Self-Determination, Human Flourishing: The End of Law, Forthcoming

Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.

In Part I, I briefly review the common law history and treatment of unwed motherhood. In Part II, I recount some less well-known but illuminating details of the family history of Carrie Buck, who was forcibly sterilized in Virginia after the Supreme Court’s 1927 decision in Buck v. Bell. In Part III, I discuss the case of Anna Buck, who, to preserve her place in her community, hid her pregnancy and gave her baby, the bastard daughter of my great-grandfather, up for adoption. In Part IV, I tell my own story of single motherhood and the choices I made, including my own decision to have an abortion while I was living in Costa Rica, where abortions were illegal. In Part V, I discuss the Dobbs decision, and how its formalistic due process and equal protection analyses are compartmentalized so as to read out of existence any potential violations of a pregnant woman’s rights. I conclude that Dobbs is fundamentally flawed because, by focusing on 1868, a time when women were excluded from the political process, it disregards developments in women’s rights in the 20th century, defines the fundamental rights at stake too narrowly and, in finding no equal protection violation, ignores the evidence of animus towards women who seek to control their reproductive destinies.