Roe v. Wade was the 1973 U.S. Supreme Court decision that recognized a constitutional right to abortion under the Fourteenth Amendment, and it governed American abortion law for nearly fifty years until the Court overturned it in 2022. The 7–2 ruling struck down Texas statutes that criminalized abortion except to save the pregnant woman’s life, and it held that the liberty protected by the Due Process Clause is broad enough to cover the decision whether to end a pregnancy. That protection no longer exists at the federal level. Dobbs v. Jackson Women’s Health Organization returned the question to state legislatures, and the result is the fractured legal map that exists today.
What the 1973 Decision Actually Held
Justice Harry Blackmun wrote the majority opinion, issued on January 22, 1973. The case came out of Texas, where performing an abortion outside the life-of-the-mother exception carried a prison term of two to five years, doubled if the procedure was done without the woman’s consent.1Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113 Only Justices Byron White and William Rehnquist dissented.
The Court grounded the ruling in the Due Process Clause of the Fourteenth Amendment, which bars states from depriving any person of liberty without due process of law. That liberty, the majority said, includes a right to privacy covering personal decisions about family, marriage, and medical care.2Library of Congress. Roe v. Wade, 410 U.S. 113 The reasoning extended the logic of Griswold v. Connecticut, the 1965 case that struck down a state ban on contraceptives for married couples by identifying zones of personal privacy the government cannot freely invade.3Justia U.S. Supreme Court Center. Griswold v. Connecticut, 381 U.S. 479 Because the Court classified abortion as a fundamental right, state restrictions had to survive strict scrutiny, the most demanding level of judicial review.
The Trimester Framework
To balance the woman’s liberty against state interests in maternal health and potential life, the Court divided pregnancy into three stages.
During the first trimester, roughly the first twelve weeks, the state had almost no authority to interfere. The decision belonged to the pregnant woman and her physician.2Library of Congress. Roe v. Wade, 410 U.S. 113
During the second trimester, the state could regulate the procedure in ways tied to protecting the woman’s health, such as rules on the qualifications of medical personnel and the facilities where procedures could take place.1Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113
During the third trimester, after the fetus reached viability, the state’s interest in protecting potential life became compelling. States could ban abortion at that point, with one mandatory exception: the procedure had to remain available when necessary to preserve the life or health of the pregnant woman.2Library of Congress. Roe v. Wade, 410 U.S. 113
Critics said the Court had written a medical regulation rather than interpreted the Constitution. Even some supporters of abortion rights questioned whether such a rigid timeline belonged in a judicial opinion.
How Casey Changed the Rule Before Dobbs
Roe did not remain the operative standard for long. In 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey challenged Pennsylvania provisions including a 24-hour waiting period, an informed consent requirement, and a rule requiring married women to notify their husbands before obtaining an abortion.4Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833
A joint opinion by Justices O’Connor, Kennedy, and Souter preserved Roe’s core holding but discarded the trimester system. In its place the Court adopted a single dividing line: fetal viability. Before viability, states could regulate abortion but could not ban it. After viability, outright bans were permissible as long as they included exceptions for the woman’s life and health. Justice Blackmun’s separate opinion noted that viability at that time occurred around 23 or 24 weeks at the earliest.4Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833
Casey also replaced strict scrutiny with a lower bar. A pre-viability regulation was unconstitutional only if it placed a “substantial obstacle” in the path of a woman seeking an abortion, a standard known as the undue burden test. Under it, the Court upheld the waiting period and informed consent requirements and struck down the spousal notification provision. For nearly three decades, undue burden was the standard courts applied, and states used the room it gave them to pass hundreds of restrictions.
How Dobbs Overturned Roe
Dobbs v. Jackson Women’s Health Organization arose from a Mississippi law banning most abortions after fifteen weeks of pregnancy, well before viability. Mississippi initially asked the Court to uphold its statute without touching Roe or Casey, then shifted position and asked the Court to overturn both.5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215
Justice Samuel Alito’s majority opinion held that the Constitution does not confer a right to abortion. The majority applied a historical test: for an unenumerated right to qualify for constitutional protection, it must be “deeply rooted in this Nation’s history and traditions.” When the Fourteenth Amendment was ratified in 1868, the opinion noted, three-quarters of states criminalized abortion at any stage of pregnancy. That record, the majority argued, made it impossible to treat abortion as a fundamental right.5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215
The opinion compared Roe to Plessy v. Ferguson, the 1896 decision that upheld racial segregation, calling both “egregiously wrong.” It characterized Roe’s reasoning as “exceptionally weak” and described Casey’s undue burden standard as unworkable. With the fundamental right eliminated, abortion regulations now face only rational basis review, the lowest level of judicial scrutiny. A law is presumed valid as long as it bears a rational relationship to a legitimate government interest.6Constitution Annotated. Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine
The Dissent
Justices Breyer, Sotomayor, and Kagan issued a joint dissent arguing that the majority overruled Roe and Casey for one reason: the composition of the Court had changed. They contended that the Fourteenth Amendment’s protection of liberty and bodily integrity had long been understood to include decisions about family and reproduction, and that the majority’s historical test was artificially narrow. As the dissent put it: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat.”5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215
Abortion Law After Dobbs
Without a federal constitutional right to abortion, the Tenth Amendment leaves each state to set its own policy.7Constitution Annotated. State Police Power and Tenth Amendment Jurisprudence As of early 2026, thirteen states have banned abortion entirely: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. Another seven states enforce gestational limits between six and twelve weeks, a point before many women know they are pregnant. Other states have protected abortion access through new legislation or state constitutional amendments.
The 2024 election cycle accelerated that trend. Voters in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York approved ballot measures enshrining abortion protections in their state constitutions. Missouri’s result was notable because the state had imposed a near-total ban after Dobbs. Nebraska voters approved a measure prohibiting abortion after the first trimester.
Shield Laws
The patchwork produced a new legal problem: what happens when a provider in a state where abortion is legal treats a patient who traveled from a state where it is banned? More than twenty states and the District of Columbia have enacted shield laws that block their courts and government agencies from cooperating with out-of-state investigations or judgments targeting abortion providers. Some shield laws explicitly cover telehealth prescriptions, protecting providers who prescribe medication abortion to patients across state lines.
Medication Abortion
Medication abortion using mifepristone and misoprostol accounts for the majority of abortions in the United States. In 2023, the FDA loosened its rules to allow mifepristone prescriptions via telehealth and dispensing through retail pharmacies. Louisiana and other states sued, and in May 2026 the Fifth Circuit Court of Appeals blocked those expansions nationwide. On May 14, 2026, the Supreme Court stayed the Fifth Circuit’s order while litigation continues, meaning mifepristone can still be mailed and dispensed through pharmacies for now.8Supreme Court of the United States. Danco Laboratories, LLC v. Louisiana
A second legal theory reaches further. The Comstock Act, an 1873 federal law still on the books, declares it illegal to mail any “article or thing designed, adapted, or intended for producing abortion.”9Office of the Law Revision Counsel. 18 U.S. Code 1461 – Mailing Obscene or Crime-Inciting Matter Abortion opponents argue the statute functions as a nationwide ban on mailing abortion medication, regardless of what any state permits. If enforced as written, it could also reach surgical instruments and other medical supplies shipped to abortion providers. No court has yet adopted this reading, but the argument continues to appear in litigation and policy debates.
Emergency Care
The Emergency Medical Treatment and Labor Act requires any hospital with an emergency room to stabilize patients presenting with emergency medical conditions.10Office of the Law Revision Counsel. 42 U.S. Code 1395dd – Examination and Treatment for Emergency Medical Conditions and Women in Labor When the stabilizing treatment a pregnant patient needs is an abortion, that federal duty collides with state bans.
In 2022, the Biden administration issued guidance asserting that EMTALA requires hospitals to provide emergency abortion care even in states with bans. Idaho challenged that guidance, and the case reached the Supreme Court as Moyle v. United States. In June 2024, the Court dismissed the case without deciding the underlying question, sending it back to the lower courts.11Supreme Court of the United States. Moyle v. United States In June 2025, the current administration rescinded the earlier guidance while maintaining that EMTALA still applies to emergency conditions threatening the health of a pregnant woman or her unborn child.12Centers for Medicare & Medicaid Services. CMS Statement on Emergency Medical Treatment and Labor Act (EMTALA) Emergency physicians in states with bans now weigh federal law against state criminal penalties when treating pregnancy emergencies.
Federal Legislation
Congress could set a national standard by statute. The Women’s Health Protection Act, reintroduced in the 119th Congress as H.R. 12, would create a statutory right to abortion care nationwide. The bill has passed the House in prior sessions but has not cleared the Senate. No competing federal legislation imposing a national ban has advanced through both chambers either.
What Dobbs Could Mean for Other Rights
Justice Clarence Thomas wrote separately in Dobbs to argue that the Court should reconsider all rights based on substantive due process, specifically naming Griswold v. Connecticut (contraception), Lawrence v. Texas (private consensual sexual conduct), and Obergefell v. Hodges (same-sex marriage).5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 The majority opinion explicitly rejected that invitation, stating: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Whether that assurance holds over time remains an open question in constitutional law.
The concern also reaches assisted reproduction. Some state laws grant legal rights to embryos or fertilized eggs, and those definitions can create exposure for in vitro fertilization, which routinely involves creating more embryos than will be implanted. More than a dozen states have established some form of fetal rights through statute or judicial decision, and the interaction between those laws and reproductive medicine remains largely untested in court. On contraception, the Right to Contraception Act would establish a statutory right to obtain and provide contraceptives; it has passed the House in a prior Congress but has not become law. Without federal legislation, contraception access depends on the same substantive due process doctrine that Dobbs rejected for abortion.