Abortion and the Fourteenth Amendment have been tied together since 1973, when the Supreme Court read the amendment’s promise of liberty to include a woman’s decision to end a pregnancy. That reading held for nearly fifty years. In 2022, the Court reversed itself in Dobbs v. Jackson Women’s Health Organization and ruled that the Fourteenth Amendment does not protect a right to abortion, returning the question to state legislatures. The amendment has not left the debate, though. Its Due Process Clause, its Equal Protection Clause, and the meaning of the word “person” inside it are all still being fought over in courts and in Congress.
The Two Clauses Doing the Work
The Fourteenth Amendment was ratified in 1868 to secure citizenship and basic rights for formerly enslaved people.1National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868) Two of its clauses became the constitutional hinges for abortion law more than a century later.
The Due Process Clause bars any state from depriving “any person of life, liberty, or property, without due process of law.” Under a doctrine called substantive due process, courts have read that language as protecting certain fundamental rights from government interference even when the Constitution’s text does not name them.1National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868)
The Equal Protection Clause forbids states from denying “any person within its jurisdiction the equal protection of the laws.” It has grounded challenges to laws that treat one group differently from another without adequate justification. Both clauses have supplied separate legal paths for arguing about abortion, and they now point in different directions depending on who is doing the arguing.
How Roe Grounded Abortion in the Fourteenth Amendment
In Roe v. Wade, the Court held that “the right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty… or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”2Legal Information Institute. Roe v. Wade, 410 U.S. 113
The right was not absolute. The Court built a trimester framework that balanced the pregnant person’s liberty against the state’s interests as the pregnancy progressed. Before viability, the decision belonged to the patient and her doctor. After viability, states could ban abortion so long as they allowed exceptions to protect the life or health of the pregnant person.2Legal Information Institute. Roe v. Wade, 410 U.S. 113
Casey and the Undue Burden Standard
In 1992, Planned Parenthood v. Casey preserved Roe‘s core holding but replaced the trimester framework. A three-justice plurality held that, before viability, a state regulation is unconstitutional if “its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion.”3Library of Congress. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 That rule became known as the undue burden test.
Casey also acknowledged a state interest in potential life from the start of pregnancy and let states try to persuade a woman toward childbirth so long as persuasion did not become obstruction. The plurality added a reliance argument: women had organized their lives and participation in society around the availability of abortion, and overruling Roe would damage the Court’s legitimacy.3Library of Congress. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 That reasoning held for another thirty years.
How Dobbs Read the Same Amendment Differently
In June 2022, the Court overturned both Roe and Casey in Dobbs v. Jackson Women’s Health Organization. The case involved a Mississippi law banning most abortions after fifteen weeks. Rather than apply the undue burden test, the majority concluded that the Constitution “does not confer a right to abortion” at all.4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215
The majority’s reasoning turned on history. Any right protected by the Due Process Clause, the Court held, must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Because three-quarters of the states criminalized abortion at all stages of pregnancy when the Fourteenth Amendment was ratified in 1868, the Court found abortion failed that test.4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 Authority over abortion returned to state legislatures.
The Dissent’s Fourteenth Amendment Argument
Justices Breyer, Sotomayor, and Kagan filed a joint dissent. Their sharpest point targeted the historical test itself. The men who ratified the Fourteenth Amendment “did not view women as full and equal citizens,” the dissent wrote, so relying on their 1868 understanding of liberty to define its modern reach was self-defeating. A woman in 1868 “had no legal existence separate from her husband” and was “seen only as the center of home and family life, without full and independent legal status under the Constitution.”5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 – Dissenting Opinion
The dissenters placed abortion inside a broader line of substantive due process decisions protecting personal autonomy over family, procreation, and bodily integrity. Forcing someone to complete a pregnancy and give birth, they argued, is among the greatest intrusions a government can impose on a person’s body. They also warned that the majority’s reasoning could not be cleanly confined to abortion, because the same doctrine supports the rights to contraception, same-sex intimacy, and same-sex marriage.5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 – Dissenting Opinion
The Personhood Reading Points the Other Way
A very different Fourteenth Amendment argument runs in the opposite direction. Some legal scholars and legislators contend that the word “person” in the Due Process and Equal Protection Clauses includes the unborn. If that reading were adopted, the amendment would not just permit abortion bans; it would require them, because allowing abortion would mean denying a class of “persons” their right to life and equal protection of the laws.
The Roe Court considered this argument and rejected it, holding that the unborn are not “persons” under Section 1 of the Fourteenth Amendment. The Dobbs majority did not revisit the question. The personhood theory has gained legislative momentum since. In January 2025, the Life at Conception Act was reintroduced in the House, declaring that “the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization.”6Congress.gov. H.R. 722 – Life at Conception Act, 119th Congress
If fetal personhood were recognized as a constitutional matter, Congress could potentially rely on Section 5 of the Fourteenth Amendment, which grants it power to “enforce, by appropriate legislation, the provisions of this article,” to enact federal restrictions.7Constitution Annotated. Amdt14.S5.4 Modern Doctrine on Enforcement Clause Section 5 cuts both ways: abortion-rights advocates argue Congress could just as well use it to protect reproductive access by enforcing the amendment’s liberty and equality guarantees. Any Section 5 legislation faces a high bar, because the Supreme Court has held that enforcement laws must show “congruence and proportionality” between the means Congress adopts and the constitutional injury it aims to address. No federal abortion legislation under Section 5 has been enacted or tested in court.
The Equal Protection Argument and What Blocks It
Separate from the due process line, some scholars frame abortion access as a sex equality question under the Equal Protection Clause. Because only people who can become pregnant bear the physical and economic weight of forced childbirth, laws banning abortion impose a burden tied to sex. The Casey plurality gestured at this when it wrote that equal citizenship “was inescapably connected to reproductive rights” and that a state could not enforce a historically subordinate “vision of the woman’s role.”3Library of Congress. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
A 1974 precedent stands in the way. In Geduldig v. Aiello, the Supreme Court held that discrimination based on pregnancy is not the same as discrimination based on sex, reasoning that a law distinguishing between pregnant and non-pregnant people does not target women as a class because women can fall into either group.8Library of Congress. Geduldig v. Aiello, 417 U.S. 484 That decision has not been overruled, and it effectively closes the most direct equal protection route for challenging abortion bans. The Dobbs majority dismissed the equal protection argument in a single paragraph without engaging it in depth. Advocates continue to press the theory, arguing that Geduldig is outdated, but so long as it stands, the equal protection path is narrow.
Where Federal Law and State Bans Collide
One active fight sits at the intersection of federal law and state abortion bans. The Emergency Medical Treatment and Active Labor Act, known as EMTALA, requires every hospital that accepts Medicare funding to provide stabilizing treatment to patients who arrive with emergency medical conditions, regardless of state law.9U.S. Department of Health and Human Services. Letter to Health Care Providers About Emergency Medical Care When a pregnant patient faces a life-threatening or serious health emergency and abortion is the medically necessary stabilizing treatment, federal law and state abortion bans collide.
In July 2022, HHS issued guidance reminding hospitals that EMTALA obligations include providing emergency abortions when needed, even if state law would otherwise prohibit the procedure, because federal law preempts directly conflicting state mandates.9U.S. Department of Health and Human Services. Letter to Health Care Providers About Emergency Medical Care Litigation has produced mixed results. In Moyle v. United States, the Supreme Court dismissed the appeal in June 2024 without resolving whether EMTALA preempts Idaho’s near-total ban. The case returned to lower courts, and the district court’s order blocking Idaho’s law in emergency situations remains in effect.10Supreme Court of the United States. Moyle v. United States, 601 U.S. 56
Texas went the other way. The Fifth Circuit Court of Appeals ruled that Texas’s strict abortion ban prevails over EMTALA, and pregnant patients in acute medical emergencies in Texas who need an abortion to stabilize have had to leave the state for care.10Supreme Court of the United States. Moyle v. United States, 601 U.S. 56 The Supreme Court has not resolved the circuit split, so the law depends on where a patient happens to live.
Where Things Stand Now
Since Dobbs returned abortion regulation to the states, the map has fractured. As of early 2026, thirteen states enforce total abortion bans, and more than forty have some form of gestational restriction on the books. Millions of people live in states where abortion is unavailable or available only in the earliest weeks of pregnancy, often before many people know they are pregnant.
Legal energy has shifted to state constitutions. Voters in eleven states have passed constitutional amendments explicitly protecting abortion rights since Dobbs, including ballot measures in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York in 2024 alone. Those amendments insulate abortion access in those states from future legislative restrictions and create a durable patchwork: some state constitutions now guarantee what the federal Constitution, per the Dobbs majority, does not.
The patchwork raises its own constitutional questions. Patients traveling across state lines, providers worried about prosecution for helping out-of-state patients, and pharmacies navigating conflicting state and federal rules on medication abortion all face unresolved uncertainty. Some of these disputes will return to the Fourteenth Amendment, particularly its protections for the right to travel and its limits on one state’s power to regulate conduct occurring in another. More than fifty years after Roe, the amendment’s relationship to abortion is not settled.