The arguments in Roe v. Wade split along a single fault line: whether the Constitution protects a woman’s decision to end a pregnancy, or whether that decision belongs to state legislatures. Jane Roe’s side argued that an implied right to privacy, drawn from several amendments and anchored in Fourteenth Amendment liberty, shields the abortion decision from state interference. Texas argued that the Constitution says nothing about abortion, that the state has legitimate interests in maternal health and potential life, and that elected lawmakers should strike the balance. In 1973 the Supreme Court adopted Roe’s framework by a 7–2 vote. In 2022 it adopted Texas’s in Dobbs.1Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization
What Roe’s Side Argued
An Implied Right to Privacy
Roe’s attorneys built their case on the idea that the Constitution contains an implied right to privacy even though no single amendment names it. They drew on Griswold v. Connecticut (1965), where the Court had held that protections in the First, Third, Fourth, Fifth, and Ninth Amendments cast “penumbras,” shadows that together create a zone of privacy the government cannot enter without serious justification.2Legal Information Institute. Right to Privacy – Section: Griswold and the Penumbras The Ninth Amendment carried particular weight here because it states that the rights listed in the Constitution are not the only rights people hold. Silence about a right, in other words, does not mean the right does not exist.
Fourteenth Amendment Liberty
The second foundation was the Fourteenth Amendment’s Due Process Clause, which prohibits states from depriving any person of “life, liberty, or property, without due process of law.”3Congress.gov. U.S. Constitution – Fourteenth Amendment Roe’s team argued that “liberty” covers deeply personal decisions about pregnancy and childbearing. The Court had already read the clause to protect private conduct from government intrusion in other settings, and few decisions, they said, are more private than whether to carry a pregnancy to term.4Oyez. Roe v. Wade
The Real Burdens of Forced Pregnancy
The constitutional theory was paired with a practical one. Roe’s attorneys described the physical health risks of pregnancy, the financial strain of raising a child, the psychological toll, and the way an unwanted pregnancy can reshape a woman’s entire life trajectory. Bodily integrity, they argued, is a prerequisite for every other civil liberty, and a state that forces someone to remain pregnant crosses the line the Bill of Rights was written to guard.
What Texas Argued
Maternal Health and Potential Life
Texas identified two state interests it said justified the ban. The first was maternal health: under its police powers, the state has broad authority to regulate medical procedures and ensure they are performed safely, and Texas extended that logic to abortion. The second was more aggressive. The state argued that its duty to protect life begins at conception, that once a pregnancy exists the government has an obligation to safeguard the developing fetus, and that the mother’s rights must therefore be weighed against the state’s interest in the life she carries. Texas framed this as a moral and legal mandate, not a policy preference.
Constitutional Silence Belongs to Legislatures
Texas also attacked the privacy theory directly. The Constitution never mentions abortion, the state argued, so the question belongs to state legislatures, not federal courts. This was a structural argument about the separation of powers: elected lawmakers, not judges, should decide how to balance a woman’s interests against the state’s interest in potential life. The Court would revisit this exact reasoning decades later when it overturned Roe.
The Fetal Personhood Dispute
One of the sharpest clashes was whether a fetus counts as a “person” under the Fourteenth Amendment. If it does, the fetus holds its own constitutional rights, including a right to life, and the state’s case for banning abortion would be nearly unassailable.
Roe’s attorneys took a textual approach. The Fourteenth Amendment grants citizenship to “all persons born or naturalized in the United States.”3Congress.gov. U.S. Constitution – Fourteenth Amendment The word “born,” they argued, means constitutional personhood attaches at birth. Other provisions reinforce that reading: age requirements for federal office, for example, only make sense for someone already born. No court had ever recognized a fetus as a legal person with rights that override a living citizen’s rights, and the Constitution never mentions fetuses or unborn children anywhere in its text.
Texas responded that a fetus is a human life from conception and deserves protection whether or not the Fourteenth Amendment technically classifies it as a “person.” The state did not need full constitutional personhood to prevail. It was enough, Texas argued, that the state has a legitimate interest in protecting potential life.
The Court sided with Roe on the textual question, holding that “person” in the Fourteenth Amendment does not include the unborn. That conclusion removed the strongest constitutional barrier to legalizing abortion, but it did not settle the underlying debate.
How the Court Resolved the Arguments in 1973
Justice Harry Blackmun’s majority opinion accepted Roe’s core theory: the Due Process Clause protects a fundamental right to privacy that includes the abortion decision.4Oyez. Roe v. Wade Because the Court treated this as a fundamental right, it applied strict scrutiny, requiring Texas to show its ban was narrowly tailored to a compelling government interest.5Justia U.S. Supreme Court Center. Roe v. Wade The Texas statute failed that test.
Rather than stopping there, the Court built a trimester framework to balance privacy against the state’s interests as pregnancy progresses:
- In the first trimester, the decision belongs to the woman and her physician; the state cannot interfere, because at that stage the procedure was statistically safer than childbirth and the state’s interest in maternal health was not yet compelling.
- In the second trimester, the state may regulate the procedure in ways reasonably related to maternal health, such as requiring a licensed facility, but cannot ban it outright.
- At viability, roughly 24 to 28 weeks, the state’s interest in potential life becomes compelling enough to justify a complete ban, except when necessary to preserve the life or health of the mother.5Justia U.S. Supreme Court Center. Roe v. Wade
How the Arguments Fared Afterward
Casey and the Undue Burden Standard
By 1992 the trimester framework was already fraying. In Planned Parenthood v. Casey, the Court replaced it with an “undue burden” standard. Casey preserved Roe’s core holding that the Constitution protects a right to abortion before viability, but it discarded strict scrutiny. States could now regulate abortion at any stage as long as their rules did not place a “substantial obstacle” in the path of a woman seeking the procedure. That gave states far more room for waiting periods, informed consent requirements, and clinic regulations than Roe had allowed. Casey also shifted the constitutional anchor away from the broad privacy concept and toward the Fourteenth Amendment’s protection of liberty, emphasizing that intimate decisions about family and bodily autonomy are central to individual dignity.
Dobbs and the Return to Texas’s Position
On June 24, 2022, the Court overturned both Roe and Casey in Dobbs v. Jackson Women’s Health Organization. The majority held that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Justice Alito’s opinion described Roe as having “imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation,” calling the framework legislative rather than judicial.1Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization The opinion also faulted Roe for ignoring the “overwhelming consensus of state laws in effect in 1868” that criminalized abortion.
With the fundamental right gone, the standard of review collapsed alongside it. Abortion restrictions no longer face strict scrutiny. They need only satisfy rational basis review, the lowest level of constitutional scrutiny, under which a law is valid as long as it bears any reasonable relationship to a legitimate government interest.1Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization Most challenges now fail at that step.
Where the Same Arguments Live Now
Dobbs returned abortion regulation to the states, but it did not resolve the questions Roe raised. Privacy, personhood, and the tension between individual liberty and state authority are being litigated in state courts under state constitutions, many of which contain privacy protections or liberty guarantees that go beyond the federal floor. Several states have recognized a right to abortion under their own constitutions using reasoning that closely tracks Roe’s original privacy framework.
The personhood question has fresh urgency. With Roe’s holding that a fetus is not a “person” under the Fourteenth Amendment no longer controlling law, some advocates argue that Congress could legislatively define personhood to include the unborn, potentially producing federal restrictions that override permissive state laws. Whether such legislation would survive constitutional challenge is an open question the Dobbs majority declined to address.
Interstate travel adds another layer. The Supreme Court has long held that citizens have a constitutional right to travel freely between states, rooted in the Privileges and Immunities Clause of Article IV.6Constitution Annotated. Right to Travel and Privileges and Immunities Clause In Doe v. Bolton, decided the same day as Roe, the Court specifically noted that a state cannot limit access to medical care to its own residents. As states adopt sharply different abortion laws, the constitutionality of measures that penalize residents for traveling elsewhere for a legal procedure remains untested at the Supreme Court level.
The arguments made in 1973 did not disappear when the decision was overturned. They migrated. The same claims about privacy, bodily autonomy, fetal life, and the limits of government power are now working through fifty separate state legal systems, each with its own constitution and its own courts.