Roe v. Wade was the 1973 Supreme Court decision that recognized a constitutional right to abortion under the Fourteenth Amendment and struck down Texas’s near-total ban on the procedure. The vote was 7–2, and Justice Harry Blackmun wrote the majority opinion. The Court held that the liberty protected by the Due Process Clause was broad enough to cover a pregnant person’s decision to end a pregnancy, though a state’s power to regulate grew as the pregnancy advanced. The ruling governed abortion law in the United States for forty-nine years until the Supreme Court overturned it in Dobbs v. Jackson Women’s Health Organization in 2022.
How the Case Reached the Supreme Court
Texas had criminalized abortion since 1854. The statutes at issue in Roe made it a crime to perform or attempt an abortion, punishable by two to five years in prison, with a single exception for a procedure “procured or attempted by medical advice for the purpose of saving the life of the mother.”1Legal Information Institute. Roe v. Wade, 410 US 113
Norma McCorvey, a Texas resident who wanted to end a pregnancy, sued under the pseudonym “Jane Roe.” The defendant was Henry Wade, the District Attorney of Dallas County. McCorvey could not qualify for a legal abortion in Texas because her life was not in danger, and she could not afford to travel to a state where the procedure was legal. A federal district court ruled the Texas statutes unconstitutional under the Ninth Amendment. Both sides appealed, and the case went to the Supreme Court.
The Constitutional Basis for the Right
The legal core of the decision was the Fourteenth Amendment, which bars states from depriving any person of “life, liberty, or property, without due process of law.”2Congress.gov. US Constitution – Fourteenth Amendment The Court held that the word “liberty” in that clause protects a right of personal privacy wide enough to reach the abortion decision.3Justia U.S. Supreme Court Center. Roe v. Wade, 410 US 113 (1973)
The reasoning built on earlier cases recognizing that the Constitution shields certain intimate decisions from government interference even when no specific amendment names them. The key precedent was Griswold v. Connecticut, decided in 1965, where the Court struck down a state ban on contraceptives and described “zones of privacy” running through several guarantees in the Bill of Rights.4Justia U.S. Supreme Court Center. Griswold v. Connecticut, 381 US 479 (1965) The Roe majority extended that reasoning to the decision whether to continue a pregnancy.
Justice Blackmun wrote that the right of privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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.”3Justia U.S. Supreme Court Center. Roe v. Wade, 410 US 113 (1973) Grounding the right primarily in the Fourteenth Amendment placed it within the doctrine of substantive due process.
Because the Court classified the right as fundamental, it applied strict scrutiny. Under that test, a state can restrict a fundamental right only by showing a “compelling state interest” served by a narrowly tailored law.3Justia U.S. Supreme Court Center. Roe v. Wade, 410 US 113 (1973) Texas’s blanket ban failed. It drew no distinction based on the stage of pregnancy and recognized no interest beyond the mother’s survival. The Court identified two state interests capable of eventually becoming compelling: protecting maternal health and protecting potential human life. Neither was compelling from the moment of conception.
Why the Fetus Was Not a “Person” Under the Constitution
Texas argued that a fetus is a “person” under the Fourteenth Amendment and therefore has a right to life the state must protect. Accepting that argument would have ended the case.
The Court rejected it after surveying the Constitution’s use of the word “person.” In provisions such as the Qualifications Clauses and the Apportionment Clause, the term consistently refers to individuals already born.5Congress.gov. US Constitution – Article I, Section 2 The Court found no place where the Constitution clearly uses “person” to include the unborn. History reinforced the point: when the Fourteenth Amendment was ratified in 1868, most states did not have strict anti-abortion laws, and widespread criminalization came later. The Court found it implausible that the drafters intended “person” to reach fetuses.
That holding did not erase the state’s interest in fetal life. It meant only that the interest could not be recast as protecting the constitutional rights of an existing legal person.
The Trimester Framework
To reconcile the individual right with the state’s two legitimate interests, the Court tied regulatory authority to the stages of pregnancy. This framework became the decision’s most recognizable feature.
- First trimester: the abortion decision belonged to the pregnant person and her physician. The state had almost no power to interfere, because at this stage the medical risks of abortion were lower than the risks of childbirth.
- Second trimester: the state’s interest in maternal health became compelling. The government could impose regulations reasonably related to protecting the patient’s health, such as requirements about the type of facility used.
- Third trimester (post-viability): once the fetus could potentially survive outside the womb, the state’s interest in potential life became compelling. States could regulate or prohibit abortion, but they had to allow exceptions for procedures needed to preserve the life or health of the mother.3Justia U.S. Supreme Court Center. Roe v. Wade, 410 US 113 (1973)
Viability was not fixed at a specific week. The Court acknowledged that medical advances could shift when it occurred. In 1973, viability was generally estimated at around 24 to 28 weeks.
The Dissents
Justices Byron White and William Rehnquist dissented, and their objections previewed arguments that would eventually prevail.
Justice White wrote that the majority had “fashioned and announced a new constitutional right” with “scarcely any reason or authority for its action.” He said the Court had valued “the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries,” and he called the decision “an exercise of raw judicial power.” In his view, the balance between pregnancy and fetal life belonged to state legislatures.
Justice Rehnquist wrote separately. He questioned whether a medical procedure performed in a clinic fit within the privacy tradition the Court had previously protected, and he criticized the trimester framework as judicial legislation. Pointing to the long history of state abortion laws dating to the nineteenth century, he argued that a right to abortion could not be considered “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
How Casey Changed the Standard
The trimester framework held until 1992, when the Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey. Pennsylvania had enacted informed consent rules, a 24-hour waiting period, parental consent for minors, and a spousal notification requirement.
A three-justice plurality reaffirmed what it called the “essential holding” of Roe: the Constitution protects the right to choose abortion before viability. But it discarded the trimester framework as too rigid. In its place, the plurality set the “undue burden” test: a regulation is unconstitutional if “its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”6Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992)
Applying that standard, the Court upheld the informed consent rule, the waiting period, and the parental consent provision. It struck down the spousal notification requirement, finding it could expose married women to potential abuse and effectively gave husbands veto power.6Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992)
Casey gave states more room to regulate before viability so long as they stopped short of a substantial obstacle. Over the next three decades, states passed hundreds of laws testing where that line fell, and courts split repeatedly on the answers.
Dobbs and the End of Roe
In June 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and overturned both Roe and Casey. The case involved Mississippi’s Gestational Age Act, which banned most abortions after 15 weeks, well before viability. Under either Roe or Casey, a pre-viability ban would have been unconstitutional.
In a 6–3 decision written by Justice Samuel Alito, the Court held that “the Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.”7Justia U.S. Supreme Court Center. Dobbs v. Jackson Womens Health Organization, 597 US 215 (2022) The majority found that the Constitution makes no reference to abortion and that no such right is implicitly protected by the Due Process Clause. Applying the test for unenumerated fundamental rights, the Court concluded that a right to abortion is neither “deeply rooted in the Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” The majority also called Casey’s undue burden standard “unworkable.”
Dobbs returned abortion regulation to state legislatures. Within months, more than a dozen states enforced near-total bans, while others moved to protect or expand access through state constitutional amendments and new legislation. Roe’s core legal moves — the application of substantive due process to reproductive decisions, the trimester framework, and the viability line — no longer state the law, but they defined the terms of American abortion debate for nearly half a century.