ACLU History: The Backlash Begins
In response, the ACLU established the Reproductive Freedom Project in 1974 to secure everyone's right to make private decisions about their reproductive lives. Since that time, the Project has been involved, in one way or another, with virtually all of the major Supreme Court cases, innumerable lower federal court, and many of the state cases challenging laws aimed at chipping away at the right to abortion care and other essential reproductive health services. The Project and its allies have contended with a virtually unending barrage of attacks on reproductive freedom. Notable cases challenging these restrictions include:
In Bellotti v. Baird (1979), the ACLU challenged a Massachusetts statute requiring women under 18 to obtain parental or judicial consent prior to having an abortion. The Court found the statute unconstitutional because it gave either a parent or a judge absolute veto power over a teen's abortion decision, no matter how mature she was and notwithstanding that an abortion might be in her best interests.
In Harris v. McRae (1980), the ACLU was co-counsel in a challenge to the Hyde Amendment, which banned the use of federal Medicaid funds for abortion except when the life of the woman would be endangered by carrying the pregnancy to term. After the McRae lawsuit was unsuccessful, the ACLU pioneered the use of state constitutions to restore state Medicaid funding. Our work in state courts, along with that of allied organizations, has helped reinstate funding for abortion care for a significant percentage of Medicaid-eligible women.
In Rust v. Sullivan (1991), the ACLU represented Dr. Irving Rust and other family planning providers who challenged the Reagan Administration's 'gag rule' barring abortion counseling and referral by family planning programs funded under Title X of the federal Public Health Service Act. Under the new rule, clinic staff could no longer discuss all of the options available to women facing unintended pregnancies, but could only refer them for prenatal care. While the lawsuit was unsuccessful, President Clinton rescinded the gag rule by executive order shortly after his inauguration in 1993.
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a case argued by the ACLU, the Supreme Court preserved the constitutional right to abortion, but it adopted a new and weaker test for evaluating abortion laws. The change emboldened anti-abortion lawmakers throughout the country to push for more and more extreme restrictions. Between 1995 and 2004, for instance, states passed nearly 400 measures blocking access to essential reproductive health services. As a result, and despite ongoing legal battles, reproductive health care has become increasingly out of reach for many women, particularly low-income women, women of color, young women, and women living in rural areas.