Roe v. Wade was the 1973 U.S. Supreme Court decision that recognized a constitutional right to abortion under the Fourteenth Amendment’s protection of personal liberty, preventing states from banning the procedure before fetal viability. The Court overturned that ruling in 2022 in Dobbs v. Jackson Women’s Health Organization, eliminating the federal constitutional protection and returning regulatory authority to state legislatures. Abortion is now completely or nearly completely banned in roughly 14 states, while others have written protections into their state constitutions.
What Roe Decided in 1973
The plaintiff was Norma McCorvey, a Dallas resident who sued under the pseudonym “Jane Roe” after discovering she was pregnant with her third child. The defendant was Henry Wade, the Dallas County district attorney. McCorvey challenged Texas laws that criminalized abortion except to save the pregnant woman’s life. The case was argued twice before the justices issued their opinion on January 22, 1973.1Justia. Roe v. Wade, 410 U.S. 113 (1973)
The Court grounded the decision in the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving any person of liberty without due process of law. The justices concluded that this concept of liberty was broad enough to cover a woman’s decision whether to carry a pregnancy to term.2Constitution Annotated. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine Because the Court classified this privacy right as fundamental, it held that only a “compelling state interest” could justify restricting it.
The Trimester Framework
To balance the individual’s right against the government’s interests, the Court divided pregnancy into three stages. During the first trimester, the decision belonged to the woman and her physician, with no state interference permitted. In the second trimester, the state gained limited authority to regulate the procedure in ways related to maternal health, such as provider qualifications and facility standards, but could not ban it. The third trimester turned on viability: once the fetus could potentially survive outside the womb, the state’s interest in protecting that potential life became compelling enough to justify prohibition. Even then, states had to allow exceptions when the procedure was necessary to protect the life or health of the pregnant woman.1Justia. Roe v. Wade, 410 U.S. 113 (1973)
Viability has always been a moving line. In 1973 it was generally understood to begin around 28 weeks. Medical advances have pushed the widely recognized threshold to roughly 23 to 24 weeks of gestation.
How Casey Modified Roe in 1992
By 1992, the trimester system was showing its age. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court replaced the rigid trimester framework with a more flexible test while preserving what it called the “essential holding” of Roe: a woman’s right to choose abortion before fetal viability without undue interference from the state.3Cornell Law School. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
The new question was whether a regulation placed a “substantial obstacle” in the path of a woman seeking a pre-viability abortion. If so, it was an “undue burden” and unconstitutional. If not, it could stand. That gave states considerably more room to regulate throughout pregnancy. The Casey Court upheld a 24-hour waiting period after mandated informational counseling and a parental consent requirement for minors with a judicial bypass. It struck down a requirement that married women notify their husbands.3Cornell Law School. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) For the next three decades, the Roe/Casey framework was the governing federal law on abortion.
How Dobbs Overturned Roe in 2022
The framework collapsed in June 2022 with Dobbs v. Jackson Women’s Health Organization. The case involved a Mississippi law banning most abortions after 15 weeks of pregnancy, well before viability. Rather than adjust the viability line, the majority overruled Roe and Casey entirely.4Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization – Syllabus
The majority reasoned that the Constitution does not mention abortion, and that for a right to qualify for Due Process protection it must be “deeply rooted in this Nation’s history and tradition.” The opinion noted that when the Fourteenth Amendment was ratified in 1868, three-quarters of the states had laws criminalizing abortion at all stages of pregnancy.5Constitution Annotated. Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Womens Health Organization, and Post-Dobbs Doctrine The majority also characterized Roe as an exercise in judicial overreach, arguing that abortion regulation belonged with elected legislatures.
The three dissenting justices pushed back sharply, writing that the majority overruled Roe “for one and only one reason: because it has always despised” the decision “and now it has the votes to discard” it. The dissenters warned that the reasoning threatened other rights built on the same constitutional foundation, including contraception and same-sex marriage, since those also rest on unenumerated liberty interests. The majority responded that abortion was distinguishable because it involves what the law recognizes as potential life.6Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization – Opinion
Where Abortion Law Stands State by State
With the federal constitutional protection removed, abortion is now regulated state by state. As of early 2026, roughly 14 states enforce total or near-total bans. Some took effect through “trigger laws” written to activate the moment Roe fell. Others came from pre-Roe statutes that had remained on the books for decades and became enforceable again after Dobbs.
Movement has run in both directions. Voters in California, Michigan, and Vermont approved state constitutional amendments protecting abortion access in 2022. Ohio followed in 2023. In 2024, voters in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York approved protections of varying scope. Constitutional amendments are harder for legislatures to undo than ordinary statutes.
Penalties in states with bans vary. Criminal charges against providers can include felonies carrying years of imprisonment and substantial fines. Some states have also adopted civil enforcement mechanisms allowing private citizens to sue anyone who performs or assists with a prohibited abortion, with statutory damages starting at $10,000 per violation. The design shifts enforcement from state officials to private litigants.
Shield Laws in Protective States
More than 20 states and the District of Columbia have enacted shield laws to protect providers and patients from out-of-state legal consequences. These laws generally block state law enforcement from cooperating with investigations initiated by other states over procedures that were legal where they were performed. Common provisions bar extradition of providers, refuse to honor out-of-state subpoenas seeking reproductive health records, and prevent state courts from enforcing out-of-state civil judgments over lawful abortion care. Some shield laws extend to telehealth prescribers physically located in a protective state when treating a patient elsewhere, though this creates unresolved conflicts between states.
Medication Abortion and Mifepristone
Mifepristone, the drug used in medication abortions, accounts for the majority of abortions performed in the United States. It was approved by the FDA in 2000 and is subject to a Risk Evaluation and Mitigation Strategy requiring pharmacy certification, signed patient agreements, and tracked shipping.
In 2024, the Supreme Court decided FDA v. Alliance for Hippocratic Medicine, a challenge to FDA decisions expanding access to the drug, including telehealth prescribing and mail distribution. The Court unanimously dismissed the case on standing grounds, so the FDA’s regulations stayed in place but the underlying legal question about the agency’s authority was left unresolved.7Supreme Court of the United States. FDA v. Alliance for Hippocratic Medicine – Opinion
Litigation has continued. In May 2026, the Supreme Court issued an order blocking a federal appeals court ruling that would have barred mailing mifepristone, keeping mail-order access available while lower courts work through the case. That is a temporary hold, not a final decision. State laws add another layer: some states with abortion bans also restrict or prohibit the prescription and mailing of abortion medication within their borders, regardless of FDA approval.
Emergency Care and EMTALA
The Emergency Medical Treatment and Labor Act, a 1986 federal law, requires hospitals that accept Medicare funding to stabilize any patient who arrives with an emergency medical condition. Whether EMTALA overrides state abortion bans when the procedure is necessary to stabilize a patient has become one of the most contested legal questions after Dobbs.
In Moyle v. United States, the Supreme Court took up whether Idaho’s abortion ban conflicted with EMTALA’s stabilization requirement but dismissed the case in 2024 without deciding the merits. The dismissal sent the case back to the lower courts, where a district court injunction preventing Idaho from enforcing its ban in EMTALA emergency situations went back into effect.8Supreme Court of the United States. Moyle v. United States – Per Curiam Opinion
In June 2025, the Department of Health and Human Services rescinded its 2022 guidance that had reinforced EMTALA’s application to pregnant patients experiencing medical emergencies, including situations where abortion might be the necessary stabilizing treatment.9CMS. Rescinded Reinforcement of EMTALA Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss EMTALA itself remains federal law, and hospitals are still legally required to provide stabilizing care. But the federal government no longer has an explicit statement saying that obligation includes abortion when medically necessary, and litigation over EMTALA’s reach in these situations remains ongoing.
Medical Records and Reproductive Health Privacy
The state-by-state shift has raised questions about medical records privacy. In 2024, the Office for Civil Rights at HHS finalized a rule adding specific protections for reproductive health information under HIPAA, designed to prevent providers from being compelled to disclose patient records to law enforcement investigating abortions that were legal where they were performed.10HHS.gov. HIPAA and Reproductive Health
In June 2025, a federal court in Texas vacated that rule nationwide, finding that HHS had exceeded its authority. The standard HIPAA Privacy Rule still applies to reproductive health information as it does to all medical records: providers generally cannot disclose patient information without authorization unless a specific exception applies, such as a valid court order or certain law enforcement requests. The extra layer of protection specifically targeting reproductive health records is no longer in effect, and the legal landscape around records access in these cases remains unsettled.