Roe v. Wade: From Origins Through Casey to Dobbs

The history of Roe v. Wade runs from a 1970 lawsuit filed by a pregnant Dallas woman under the pseudonym “Jane Roe,” through the Supreme Court’s 1973 ruling that recognized a constitutional right to abortion, into a 1992 decision that narrowed the standard, and finally to the 2022 Dobbs decision that overturned it and returned abortion regulation to the states.¹² The original 7-2 decision came down on January 22, 1973, and governed American abortion law for nearly half a century before the Court reversed course.

Abortion Law Before the Case

For most of American history, abortion was a matter of state law. By 1880, every state had enacted some form of restriction, and by 1910 the procedure was illegal at every stage of pregnancy in every state, with narrow exceptions typically allowing it only when a doctor found it necessary to save the pregnant woman’s life.

The ground shifted in the late 1960s. Between 1967 and 1973, Alaska, Hawaii, New York, and Washington repealed their abortion bans outright. Thirteen other states expanded their exceptions to cover threats to physical or mental health, fetal abnormalities, or pregnancies resulting from rape or incest. A majority of states still treated abortion as a criminal offense.

The doctrinal building block for a federal challenge came in 1965 with Griswold v. Connecticut, where the Supreme Court struck down a state ban on contraceptive use. The Court held that the Bill of Rights creates a zone of privacy broad enough to protect married couples’ decisions about contraception.³ That concept of constitutional privacy, drawn not from any single amendment but from the combined reach of several, became the foundation attorneys would later use against Texas’s abortion statutes.

How the Lawsuit Began in Texas

In 1970, Norma McCorvey, a Dallas resident pregnant with her third child, sought an abortion in a state that permitted the procedure only to save the life of the mother.¹ Unable to obtain one, she connected with two young Texas attorneys, Linda Coffee and Sarah Weddington, both recent graduates of the University of Texas School of Law. Using the pseudonym “Jane Roe” to protect McCorvey’s identity, they sued Henry Wade, the district attorney for Dallas County.

Coffee and Weddington argued that the Texas criminal abortion statutes were unconstitutionally vague and violated the right to personal privacy protected by the Ninth and Fourteenth Amendments. A three-judge federal panel ruled in McCorvey’s favor on June 17, 1970, finding that the Texas law violated the right to privacy under the Ninth Amendment and relying heavily on Justice Arthur Goldberg’s concurrence in Griswold.⁴ The panel issued a declaratory judgment striking down the statutes but declined to enjoin Texas from enforcing them, and that gap sent the case to the Supreme Court.

The case was first argued on December 13, 1971, then reargued on October 11, 1972. Weddington, 26 years old at the first argument, became one of the youngest attorneys ever to appear before the Court. McCorvey’s pregnancy had long since ended by then; she gave birth and placed the child for adoption. The Court held the case was not moot because pregnancy was “capable of repetition, yet evading review,” a procedural ruling that made future abortion challenges possible at all.

The 1973 Decision

On January 22, 1973, the Supreme Court issued its opinion in Roe v. Wade, 410 U.S. 113. Justice Harry Blackmun wrote for a 7-2 majority that included Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall, and Powell.⁵ The Court held that the Due Process Clause of the Fourteenth Amendment protects a right to privacy broad enough to encompass a woman’s decision to have an abortion.¹ The right was not absolute. The state had legitimate interests in protecting maternal health and potential life, and those interests grew stronger as pregnancy progressed.

The Trimester Framework

To balance those interests, the Court divided pregnancy into three stages. During the first trimester, the decision belonged to the pregnant woman and her doctor, with no state interference allowed.⁵ The Court reasoned that first-trimester abortion was statistically safer than childbirth, so the state’s health interest did not yet justify regulation.

In the second trimester, states could regulate the procedure in ways reasonably related to maternal health, such as facility standards and practitioner licensing, but could not ban it.

After viability, the point at which a fetus could survive outside the womb and generally between 24 and 28 weeks, the state’s interest in potential life became strong enough to justify prohibiting abortion, with a mandatory exception for cases where the woman’s life or health was at risk.¹ This framework governed abortion law for nearly two decades.

The Dissents

Justices Byron White and William Rehnquist dissented. White accused the majority of creating a rigid framework with no basis in the Constitution’s text and argued that the Court had taken policy decisions away from state legislatures. Rehnquist looked to nineteenth-century abortion laws to argue that the drafters of the Fourteenth Amendment could not have intended it to protect a right they considered criminal, and he contended that rational-basis review, the test used for economic and social legislation, should apply.¹ His reasoning would resurface almost verbatim in the Dobbs majority nearly fifty years later.

How Casey Rewrote the Standard in 1992

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), reshaped the legal standard without formally overturning Roe. The case challenged five provisions of Pennsylvania’s abortion law, including a 24-hour waiting period, informed consent, parental consent for minors, spousal notification, and clinic reporting requirements.⁶

In an unusual joint opinion, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter reaffirmed what they called Roe’s “core holding” that a woman has a right to choose abortion before viability without undue interference from the state.⁷ They discarded the trimester framework and replaced it with a single dividing line: fetal viability.

Under Casey’s new “undue burden” test, pre-viability restrictions were constitutional unless they placed a “substantial obstacle” in the path of a woman seeking an abortion.⁶ The Court also held that the state has a legitimate interest in potential life from the outset of pregnancy, not just after viability. That doctrinal shift opened the door to regulations Roe had blocked. Applying the standard, the Court upheld Pennsylvania’s informed consent requirement, its 24-hour waiting period, and its parental consent provision, striking down only the spousal notification requirement because it could deter women in abusive relationships from seeking the procedure.⁷

Between Casey and Dobbs

The undue burden test proved to be a moving target. States passed mandatory ultrasound rules, hospital admitting-privilege requirements for doctors, and facility standards designed to force clinics to close. Litigation over each new restriction became a near-constant feature of federal courts.

The most significant clarification came in 2016 with Whole Woman’s Health v. Hellerstedt. Writing for a 5-3 majority, Justice Stephen Breyer struck down two Texas requirements, admitting privileges and ambulatory surgical center standards, and held that courts must weigh a law’s burdens on access against the health benefits it actually delivers rather than defer to a legislature’s stated rationale.⁸ The decision made clear that the undue burden test had real teeth. Within six years, changes in the Court’s composition would make the whole framework irrelevant.

Dobbs and the End of the Federal Right

The case that ended Roe began with Mississippi’s Gestational Age Act, a 2018 law banning abortion after 15 weeks, well before viability. Jackson Women’s Health Organization, the state’s only licensed abortion clinic, challenged it the day it was enacted. Both the district court and the Fifth Circuit struck it down as incompatible with Casey’s viability line.² The Supreme Court granted review on whether all pre-viability bans on elective abortion are unconstitutional.

On June 24, 2022, the Court answered by overruling both Roe and Casey. Justice Samuel Alito wrote for a majority joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred in the judgment upholding Mississippi’s 15-week ban but would not have gone further. Justices Breyer, Sotomayor, and Kagan dissented.⁹

The Majority’s Reasoning

Alito’s opinion rested on two points. The Constitution makes no reference to abortion, and the right is not implicitly protected by any constitutional provision.² Applying the test for unenumerated rights under the Fourteenth Amendment, the majority concluded that a right to abortion is not “deeply rooted in this Nation’s history and tradition,” surveying centuries of common law and statutory restrictions to argue that abortion had been treated as a criminal offense in most jurisdictions throughout American history.⁹

With the constitutional right removed, state abortion regulations now need only satisfy rational-basis review, the most deferential standard in constitutional law. A law is presumed valid and will be upheld if the legislature could reasonably have believed it served a legitimate interest such as protecting prenatal life or women’s health.² The majority called Roe “egregiously wrong from the start” and returned the authority to regulate or prohibit abortion to state legislatures.

The Dissent and the Thomas Concurrence

The joint dissent by Justices Breyer, Sotomayor, and Kagan argued that the majority was stripping away a right millions of people had relied on for fifty years, that without access to abortion women would be unable to participate equally in economic and social life, and that the majority’s historical analysis was selectively constructed.

Justice Clarence Thomas went further in a solo concurrence. He argued that the Court should reconsider all of its substantive due process precedents because they rest on the same legal foundation Dobbs had just rejected.² He named three decisions specifically:

Griswold v. Connecticut (1965), the right to purchase and use contraceptives
Lawrence v. Texas (2003), the right to private, consensual sexual activity between adults
Obergefell v. Hodges (2015), the right to same-sex marriage

No other justice joined Thomas’s concurrence. The majority opinion expressly stated that its holding should not be understood to cast doubt on precedents unrelated to abortion. All three named decisions share the same doctrinal roots as Roe, and the tension Thomas identified has not gone away because the majority declined to address it.

What the Ruling Changed on the Ground

The immediate effect of Dobbs was a patchwork. Within weeks, states with pre-existing “trigger laws” written to take effect if Roe were ever overturned began enforcing prohibitions. Other states passed new restrictions. Several went the other direction, enshrining abortion protections in statute or amending their state constitutions through ballot measures.

There is no longer a federal floor or ceiling on abortion regulation. Each state now sets its own rules on gestational limits, exceptions for health emergencies, rape, incest, and fetal abnormalities, and penalties for providers. Access depends almost entirely on geography, a reality that has driven significant cross-state travel and raised new legal questions about interstate enforcement.

Medication Abortion

Medication abortion using mifepristone now accounts for more than 60 percent of all abortions in the United States, with roughly a quarter provided through telehealth. The FDA permanently removed the in-person dispensing requirement for the drug in 2023, allowing it to be prescribed via telehealth and mailed to patients. As of mid-2026, the Supreme Court has temporarily blocked a Fifth Circuit ruling that would have reinstated in-person requirements, allowing mifepristone to continue being sent by mail while lower courts work through the issue. Separate cases in multiple federal courts seek to force the FDA to withdraw its approval of mifepristone entirely.

The Comstock Act, an 1873 federal law, declares “nonmailable” any article designed or intended for producing an abortion, along with any written material describing how to obtain one.¹⁰ It carries penalties of up to five years’ imprisonment for a first offense and up to ten years for later violations. Administrations of both parties long treated the Comstock Act as effectively dormant with respect to abortion. After Dobbs, its potential revival has become a live legal question, and broad enforcement could restrict the mailing of abortion medication nationwide regardless of individual state laws.

Emergency Medical Care

The Emergency Medical Treatment and Labor Act (EMTALA), enacted in 1986, requires hospitals receiving Medicare funding to stabilize anyone who arrives with an emergency medical condition. Whether this federal obligation overrides state abortion bans when a pregnant patient faces a life-threatening emergency has become one of the most contested legal questions since Dobbs. In 2024, the Supreme Court took up the issue in Moyle v. United States, an Idaho case, but dismissed the case without resolving the underlying question.¹¹ The conflict continues to work through lower courts.

What Happened to Norma McCorvey

The woman behind “Jane Roe” never actually had an abortion. Her pregnancy ended in childbirth before the Supreme Court decided her case. She went public as Jane Roe in 1976 and spent years as a visible advocate for abortion rights, speaking at rallies and founding organizations in her name.

In 1995, her public stance reversed after she met Flip Benham, the head of Operation Rescue, an anti-abortion organization. Benham baptized her, and McCorvey began working for Operation Rescue, urging the Senate and the Supreme Court to overturn the very decision that carried her name. She later testified before Congress in support of restrictions. McCorvey died in February 2017 in Katy, Texas. In a 2020 documentary filmed before her death, she stated that her anti-abortion advocacy had been “all an act” for which she was paid, a final reversal that left both sides claiming her legacy.

1
Justia. Roe v. Wade, 410 U.S. 113 (1973)
2
Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
3
Justia. Griswold v. Connecticut, 381 U.S. 479 (1965)
4
Justia Law. Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970)
5
Supreme Court of the United States. Roe v. Wade, 410 U.S. 113
6
Supreme Court of the United States. Planned Parenthood of Southeastern Pa. v. Casey
7
Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
8
Justia. Whole Woman’s Health v. Hellerstedt (2016)
9
Congress.gov. Constitution Annotated – Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine
10
Office of the Law Revision Counsel. 18 U.S.C. 1461 – Mailing Obscene or Crime-Inciting Matter
11
Supreme Court of the United States. Moyle v. United States (2024)