Roe v. Wade Constitutional Principles: Due Process, Privacy, Dobbs

The constitutional principles behind Roe v. Wade came from the Fourteenth Amendment’s Due Process Clause. In 1973, the Supreme Court held that the word “liberty” in that clause protects a right to privacy broad enough to cover a person’s decision about whether to continue a pregnancy, and it drew supporting force from the Ninth Amendment’s recognition of unenumerated rights.¹ That reasoning governed American abortion law for nearly fifty years, until the Court rejected it in Dobbs v. Jackson Women’s Health Organization in 2022.²

Substantive Due Process: The Doctrine Behind the Decision

Most people hear “due process” and picture courtroom procedure: notice, a hearing, a fair trial. Substantive due process works differently. It says that certain freedoms are so central to American liberty that no government can take them away, no matter how careful the procedure. A state could follow every rule in the book and still violate the Constitution if the law it passed intruded on one of those freedoms.

By the time Roe was decided, the Court had already used substantive due process to protect decisions about marriage, family relationships, contraception, and child-rearing.³ The question in 1973 was whether the decision to end a pregnancy belonged in that same protected category. Justice Blackmun, writing for the majority, concluded that it did.

Placing abortion in that category had a specific legal consequence. When a law targets a fundamental liberty, courts apply strict scrutiny: the state must show a compelling reason for the restriction, and the restriction must be narrowly tailored to serve that reason. The burden shifts from the individual, who no longer has to justify a medical decision, to the government, which has to justify its interference. Without that shift, the privacy right would have been an abstract idea legislatures could override whenever they had the votes.

The Fourteenth Amendment and the Right to Privacy

The specific text the Court relied on sits in Section 1 of the Fourteenth Amendment: “No State shall…deprive any person of life, liberty, or property, without due process of law.”⁴ The word doing the heavy lifting was “liberty.” The Roe majority read it broadly, holding that personal liberty encompasses a right to privacy that covers intimate medical decisions, including a decision about pregnancy.¹

That reading did not come out of nowhere. Eight years earlier, in Griswold v. Connecticut, the Court struck down a state law banning married couples from using contraceptives, holding that the Bill of Rights creates “zones of privacy” that the government must respect.⁵ Eisenstadt v. Baird extended that privacy protection to unmarried individuals in 1972. By 1973, the Court had a line of precedent establishing that the Constitution protects private decisions about reproduction, and Roe extended that line one step further.

The Roe majority also emphasized the real-world stakes of denying the right. Forcing a person to carry an unwanted pregnancy to term imposes physical health risks, psychological strain, financial costs, and lasting effects on their life trajectory. Those burdens, the Court found, were significant enough that a state could not impose them without meeting the highest constitutional standard.

The Ninth Amendment and Unenumerated Rights

Opponents of the Roe decision pointed out, correctly, that neither “abortion” nor “privacy” appears in the Constitution. The Court answered that argument by pointing to the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”⁶ In plain terms, silence in the text does not mean the right does not exist, and it does not give the government unlimited power to regulate.

The Ninth Amendment played a supporting rather than starring role. The Fourteenth Amendment’s Due Process Clause carried most of the legal weight. But invoking it let the majority anchor the privacy right in the broader architecture of the Constitution, signaling that the freedom to make deeply personal medical decisions had roots in the founding generation’s understanding of liberty, not just in mid-twentieth-century judicial reasoning.

How the Principle Was Applied: The Trimester Framework

Identifying a constitutional right was only half the problem. The harder question was how to balance that right against the government’s legitimate interests in protecting both the pregnant person’s health and the potential life of the fetus. The Roe Court’s answer was a trimester framework that assigned different weight to each interest at different stages of pregnancy.⁷

In the first trimester, the decision belonged to the patient and their physician, with no room for state interference. The Court reasoned that at this stage the procedure carried lower health risks than childbirth itself, leaving no medical justification for government involvement. In the second trimester, the state could regulate the procedure, but only in ways tied to protecting the patient’s health, such as rules about facility standards or physician qualifications. Once the fetus reached viability, generally between 24 and 28 weeks, the state’s interest in potential life became compelling enough to justify a ban, subject to an exception for the life or health of the pregnant person.⁸

This framework turned an abstract constitutional principle into concrete rules that hospitals, legislators, and lower courts could apply. Both sides criticized it. Opponents said the Court had written a statute from the bench. Supporters worried that tying rights to medical stages left the framework vulnerable to shifting technology. Both criticisms would prove prophetic.

Casey Kept the Principle but Changed the Test

The trimester framework lasted less than twenty years. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a three-justice plurality preserved what it called the “essential holding” of Roe, including the recognition that the Constitution protects a liberty interest in the abortion decision, but rejected the trimester structure as too rigid.⁹

In its place, Casey introduced the “undue burden” standard. A state regulation was unconstitutional if it had the purpose or effect of placing a “substantial obstacle” in the path of a person seeking an abortion before viability. Viability remained the dividing line, but the state gained more room to regulate before that point, including mandatory waiting periods and informed-consent requirements, so long as those laws did not create a substantial obstacle.⁹

Casey was a compromise. It kept the constitutional principle, replaced strict scrutiny with a more flexible and less protective test, and held for another thirty years. Courts struggled to apply the standard consistently, because the line between a permissible regulation and a substantial obstacle proved difficult to draw.

Dobbs Rejected the Constitutional Foundation

In June 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and overruled both Roe and Casey. The case involved a Mississippi law banning most abortions after 15 weeks of pregnancy, well before viability. Rather than evaluate the law under the undue burden standard, the majority concluded that the Constitution does not protect a right to abortion at all and returned the question to state legislatures.²

The majority’s reasoning attacked the foundation Roe was built on. For a right to qualify for protection under the Due Process Clause when it is not mentioned in the constitutional text, the opinion held, that right must be “deeply rooted in this Nation’s history and tradition” and “essential to this Nation’s scheme of ordered liberty.” The majority surveyed abortion regulation in England and the United States and concluded that a right to abortion did not meet either requirement. At the time the Fourteenth Amendment was ratified in 1868, three-quarters of the states had made abortion a crime at all stages of pregnancy. That history, the Court said, was fatal to the claim that the right was fundamental.²

The majority also set aside stare decisis, calling Roe “egregiously wrong from the start,” its reasoning “exceptionally weak,” and the undue burden test unworkable in practice. With the constitutional right removed, the Court held that state abortion regulations need only pass rational basis review, the lowest level of judicial scrutiny, which gives legislatures wide latitude.²

Three justices dissented jointly, writing that the majority had erased fifty years of settled law and stripped away a liberty interest that millions of people had relied on. The dissenters rejected the idea that constitutional rights must be frozen in the understanding of the 1860s, arguing that the Framers “defined rights in general terms, to permit future evolution in their scope and meaning.”²

What Remains of the Roe Principles

The core constitutional principle Roe stood for, that the Fourteenth Amendment’s protection of liberty includes a right to privacy covering the abortion decision, is no longer the law. Dobbs did not eliminate substantive due process as a doctrine, but it narrowed the test for which unenumerated rights qualify by tying that test tightly to historical practice at the time each relevant amendment was ratified. The Ninth Amendment argument for unenumerated rights survives in theory, though under the Dobbs framework it carries less practical force for rights the majority views as historically unsupported.

What had been a nationally protected constitutional right for half a century is now a matter decided state by state. The framework of strict scrutiny, the trimester structure, the undue burden standard, and the viability line are all gone from federal constitutional law. Whatever protection exists now comes from state constitutions, state statutes, and state courts, not from the Fourteenth Amendment reading that once held Roe together.

1
Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
2
Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
3
Legal Information Institute. Abortion and Substantive Due Process
4
Congress.gov. Fourteenth Amendment
5
Justia U.S. Supreme Court Center. Griswold v. Connecticut, 381 U.S. 479 (1965)
6
Congress.gov. U.S. Constitution – Ninth Amendment
7
Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113 (1973)
8
Legal Information Institute. Roe v. Wade (1973)
9
Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)