Roe v. Wade was the 1973 Supreme Court decision that recognized a constitutional right to abortion under the Fourteenth Amendment’s Due Process Clause, blocking states from banning the procedure outright. The Court decided the case 7–2, with Justice Harry Blackmun writing the majority opinion. It governed abortion access across the country for nearly fifty years, until the Supreme Court overturned it on June 24, 2022, in Dobbs v. Jackson Women’s Health Organization.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization Authority to regulate abortion now belongs to the states, and the resulting legal map is fractured: thirteen states enforce total bans, others have amended their constitutions to protect the right, and several major questions about interstate reach and federal law remain unsettled.
What Roe Actually Decided
Norma McCorvey, filing under the pseudonym Jane Roe, challenged Texas statutes that criminalized abortion except when necessary to save the mother’s life. Justice Blackmun’s majority opinion grounded its ruling in the Due Process Clause of the Fourteenth Amendment, which bars states from depriving anyone of life, liberty, or property without due process of law.2Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine The Court held that the word “liberty” in that clause encompassed a right to privacy broad enough to cover a woman’s decision about whether to end a pregnancy.3Justia. Roe v. Wade, 410 US 113 (1973)
The right was never absolute. The majority balanced it against two state interests: protecting maternal health and protecting the potential for human life. To structure that balancing, the Court built a framework tied to the three trimesters of pregnancy.
During the first trimester, the decision belonged to the woman and her physician, and the state had almost no authority to intervene. In the second trimester, states could impose regulations reasonably related to maternal health, such as standards for facilities and physician qualifications, but could not use those rules as a pretext to ban the procedure. The third trimester began at fetal viability, the point at which a fetus could survive outside the womb. After viability, states could ban abortion outright, with one non-negotiable exception: the procedure had to remain available when necessary to protect the woman’s life or health.3Justia. Roe v. Wade, 410 US 113 (1973)
In 1973, viability was generally understood to occur around 28 weeks. Advances in neonatal medicine pushed that threshold earlier over the decades that followed, with 24 weeks eventually treated as the point where aggressive medical intervention becomes standard. A rigid time-based framework could not easily absorb that shift, and pressure built for a different approach.
How Casey Modified Roe
The trimester framework lasted less than twenty years. In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, four justices wanted to overturn Roe entirely.4Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992) They fell one vote short. A joint opinion by Justices O’Connor, Kennedy, and Souter preserved what it called Roe’s “essential holding” but replaced the trimester system with the undue burden test.
Under that test, states could regulate abortion throughout pregnancy as long as their rules did not place a “substantial obstacle” in the path of a woman seeking the procedure before viability.5Library of Congress. Planned Parenthood of Southeastern Pennsylvania v. Casey After viability, states could still ban the procedure, provided they included exceptions for threats to the woman’s life or health. Casey upheld Pennsylvania’s informed consent disclosures and a 24-hour waiting period, and struck down only the state’s spousal notification requirement.4Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992) For thirty years, Casey’s standard, not Roe’s original framework, was the working law.
How Dobbs Overturned Roe
On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and overruled both Roe and Casey. The case began as a challenge to a Mississippi law banning most abortions after 15 weeks, well before viability. Justice Samuel Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred in upholding the Mississippi law but wrote separately to say overruling Roe was unnecessary. Justices Breyer, Sotomayor, and Kagan dissented.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
The majority held that the Constitution does not confer a right to abortion and that authority to regulate the procedure belongs to the states and their elected legislatures. To reach that conclusion, the opinion applied a test asking whether the claimed right is “deeply rooted in this Nation’s history and tradition” and essential to the country’s “scheme of ordered liberty.” Abortion failed both prongs, the majority found, because most states criminalized the procedure throughout the nineteenth century and at the time the Fourteenth Amendment was ratified in 1868.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Overruling a prior decision requires justification. The majority identified five factors: the nature and severity of Roe’s error, the quality of its reasoning, the unworkability of Casey’s undue burden standard, distortion of unrelated areas of law, and the absence of concrete reliance interests of the kind that arise in property or contract cases. The opinion compared Roe to Plessy v. Ferguson, the 1896 decision upholding racial segregation, calling both “egregiously wrong” from the day they were decided.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
What the Dissent and Thomas Concurrence Said
The three dissenting justices called the decision a “radical reshaping of the law” that lacked justification because nothing had changed in the law or underlying facts since Casey. They emphasized the reliance interests of millions of women who had structured their lives around the assumption that the right existed, and warned that the burden would fall hardest on women without the resources to travel, noting that women below the federal poverty line experience unintended pregnancies at five times the rate of higher-income women.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
The majority insisted its reasoning applied only to abortion and did not threaten other rights built on substantive due process, such as contraception, private consensual sexual activity, and same-sex marriage. Justice Thomas disagreed. In a solo concurrence, he argued the Court should reconsider all substantive due process precedents, explicitly naming Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. No other justice joined that concurrence, but it fueled concern about how far the Dobbs reasoning might eventually reach.
Where Abortion Law Stands Now
With the federal right gone, the Tenth Amendment default applies: powers not granted to the federal government belong to the states.6Congress.gov. Tenth Amendment As of early 2026, thirteen states enforce total bans, most through “trigger laws” drafted in advance of Dobbs or through pre-Roe statutes that snapped back into force. Other states ban the procedure after six or twelve weeks, often before many women know they are pregnant. Whether a specific procedure is legal in a specific place now depends on that state’s statutes and constitution.
The political response has been substantial. In 2024, voters in seven states faced abortion-related ballot measures. Arizona, Colorado, Maryland, Missouri, Montana, and Nevada all approved constitutional amendments protecting abortion rights. Florida’s measure received 57 percent support but fell short of the state’s 60 percent supermajority threshold. Nebraska voters approved an amendment restricting abortion after the first trimester while simultaneously rejecting a competing measure that would have protected the right until viability. Some state supreme courts have separately interpreted their own constitutions to protect abortion rights, which means the picture in a given state depends on both the legislature and the courts.
Shield Laws and Interstate Conflicts
More than twenty states and Washington, D.C., have enacted shield laws designed to protect abortion providers and patients from out-of-state investigations and prosecutions. These laws block state agencies from cooperating with extradition requests or legal proceedings initiated by ban states. Some go further, explicitly authorizing their providers to prescribe abortion medication via telehealth to patients located in ban states and stripping enforcement power from any resulting out-of-state judgments. In states without formal shield legislation, several governors have issued executive orders barring state agencies from cooperating with out-of-state reproductive health investigations.
The legal authority for these protections is largely untested. Whether one state can shield its residents or providers from another state’s criminal laws raises unresolved questions under the Full Faith and Credit Clause and the Privileges and Immunities Clause. No definitive federal ruling has settled these conflicts.
Medication Abortion After Dobbs
Medication abortion now accounts for roughly two-thirds of abortions in the United States, and most recent federal litigation has focused on mifepristone, the primary drug in the two-drug regimen. The FDA first approved mifepristone in 2000 under a restricted distribution system. In 2023, the agency permanently removed its requirement that the drug be dispensed in person, opening the door to telehealth prescriptions and mail delivery.
Anti-abortion groups challenged those relaxed regulations, and the case reached the Supreme Court as FDA v. Alliance for Hippocratic Medicine. In June 2024, the Court ruled unanimously that the challengers lacked standing because they could not show personal harm from the FDA’s decisions.7Supreme Court of the United States. FDA v. Alliance for Hippocratic Medicine That decision did not resolve whether states can ban an FDA-approved drug, and a separate lawsuit brought by several state attorneys general continues. As of mid-2026, the Supreme Court has declined to reimpose restrictions on mifepristone while that litigation proceeds, so telehealth prescribing and mail delivery remain available under federal law.
Whether federal FDA approval prevents states from banning a specific drug remains open. The Food, Drug, and Cosmetic Act does not contain explicit language saying that FDA approval overrides state drug restrictions the way it does for medical devices. Courts evaluating this question would apply a theory of implied conflict preemption, asking whether a state ban directly conflicts with and frustrates the purpose of the federal regulatory scheme. At least one federal court, in an earlier case involving a different drug, invalidated a state’s attempt to prohibit an FDA-approved medication on the grounds that it undermined the agency’s authority. Applying that logic to mifepristone is the next major fight, and the outcome is uncertain.
Emergency Care Under State Bans
The Emergency Medical Treatment and Labor Act requires every hospital that participates in Medicare to stabilize any patient who arrives with an emergency medical condition, regardless of what treatment stabilization requires.8Office of the Law Revision Counsel. 42 USC 1395dd – Examination and Treatment for Emergency Medical Conditions and Women in Labor When a pregnant woman arrives in a medical crisis and the only effective stabilizing treatment is ending the pregnancy, EMTALA and state bans point in opposite directions.
In Idaho, the federal government sued to block enforcement of the state’s near-total ban in emergency rooms, arguing that EMTALA required hospitals to provide abortion when necessary to prevent serious health consequences. The Supreme Court took up the case in 2024 but dismissed it without reaching the merits, sending it back to the lower courts.9Supreme Court of the United States. Moyle v. United States In March 2025, the Department of Justice dropped the challenge entirely. A similar dispute in Texas resulted in a lower court blocking federal EMTALA guidance in that state, and the Supreme Court declined to hear the appeal in October 2024.
The federal guidance interpreting EMTALA to require abortion care in emergencies was formally rescinded in June 2025. The current administration’s position, as stated by the HHS Secretary, is that EMTALA still ensures pregnant women have access to “stabilizing care” in emergencies but does not specify that such care includes abortion. A separate lawsuit filed by the Alliance Defending Freedom and the Catholic Medical Association argued that EMTALA never required abortion care at all. The federal emergency care mandate technically remains on the books, but no federal agency is actively enforcing it as a counterweight to state bans, and no court has definitively ruled on whether EMTALA overrides a state’s criminal prohibition on the procedure.