The Roe v. Wade justices split 7–2 when the Supreme Court decided the case on January 22, 1973. Justice Harry Blackmun wrote the majority opinion, joined by Chief Justice Warren Burger and Justices William O. Douglas, William J. Brennan Jr., Potter Stewart, Thurgood Marshall, and Lewis F. Powell Jr. Justices Byron White and William Rehnquist dissented. Nearly fifty years later, a differently composed Court overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022) by a 5–4 vote on that question.
The Seven Justices in the Majority
The seven who voted to recognize a constitutional right to abortion came from appointments spanning three decades and five presidents, which makes the lopsided outcome worth noting. Justice William O. Douglas had been on the Court since Franklin D. Roosevelt named him in 1939.1Oyez. William O. Douglas Brennan and Stewart were Eisenhower appointees. Marshall came from Lyndon Johnson. Chief Justice Burger, along with Blackmun and Powell, had been placed on the Court by Richard Nixon.2Oyez. Warren E. Burger Four Nixon appointees joined the majority; only his fourth, Rehnquist, dissented.
Blackmun’s opinion grounded the right in the Due Process Clause of the Fourteenth Amendment, building on Griswold v. Connecticut (1965), which had recognized a right to privacy broad enough to protect access to contraception.3Justia U.S. Supreme Court Center. Griswold v. Connecticut He concluded that the same right was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”4Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
Two other pieces of the majority’s reasoning mattered for what came later. Blackmun surveyed the legal history and found that at common law, ending a pregnancy before “quickening” was not an indictable offense, which undercut the claim that criminal abortion laws reflected an unbroken tradition. And the Court held that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”5Justia U.S. Supreme Court Center. Roe v. Wade Without that status, the state’s interest could not override the woman’s privacy right in the early stages of pregnancy. To balance the two interests as pregnancy progressed, Blackmun designed a trimester framework tied to fetal viability.4Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
The Two Justices Who Dissented
Justices Byron White and William Rehnquist wrote separately, and each dissent previewed an argument that would eventually prevail.
White was blunt. He called the decision “an exercise of raw judicial power” and accused the majority of fashioning “a new constitutional right for pregnant mothers” with “scarcely any reason or authority for its action.”6C-SPAN. Roe v. Wade – Justice White Dissent Nothing in the text or history of the Constitution, he wrote, supported the result. The question of how to weigh fetal life against the impact on the mother belonged to voters and legislators.
Rehnquist made a more technical argument. When the Fourteenth Amendment was ratified in 1868, he pointed out, at least 36 states and territories already had laws restricting abortion. If the amendment’s framers lived alongside those laws without seeing a conflict, the amendment could not have been meant to protect a right to abortion. He also objected to the majority’s use of strict scrutiny and argued the Court should have applied the rational basis test, under which nearly any state restriction would survive.7Cornell Law School. Roe v. Wade – Dissenting Opinion
White was a Kennedy appointee often described as a moderate; Rehnquist was Nixon’s most conservative pick. Their judicial philosophies were quite different, but they agreed that the Court had no business creating constitutional protections the document’s text did not spell out.
Casey Preserved Roe by One Vote in 1992
Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court came within a single vote of overruling Roe. Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter authored an unusual joint opinion preserving what they called Roe’s “essential holding,” with Blackmun and Stevens joining on that core point.8Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey
Casey discarded the trimester framework and replaced strict scrutiny with the “undue burden” test, meaning a pre-viability restriction was unconstitutional only if it placed a “substantial obstacle” in the path of a woman seeking an abortion. Chief Justice Rehnquist, the same justice who had dissented in Roe, wrote an opinion joined by White, Scalia, and Thomas arguing that Roe should be overruled entirely.8Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey They fell one vote short.
The Five Justices Who Overturned Roe in Dobbs
In Dobbs v. Jackson Women’s Health Organization, the Court finally did what the Casey dissenters had wanted. Justice Samuel Alito wrote the majority opinion, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. All five had been appointed by Republican presidents; three of them (Gorsuch, Kavanaugh, and Barrett) came from a single president, Donald Trump.9Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Alito applied the historical test Rehnquist had advocated in 1973. A right must be “deeply rooted in this Nation’s history and tradition” to qualify under the Due Process Clause, the majority held. Because abortion had been criminalized in much of American history and had no recognition in the constitutional text, it failed that test. The authority to regulate abortion, the opinion declared, “is returned to the people and their elected representatives.”10Constitution Annotated. Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine
Thomas filed a concurrence that went further than any other member of the majority was willing to go. He argued that the Court should reconsider all of its substantive due process precedents, naming Griswold, Lawrence v. Texas, and Obergefell v. Hodges. No other justice joined that portion of his opinion, and Kavanaugh wrote separately to say Dobbs should not cast doubt on those other rights.
Roberts’s Concurrence and the Three Dissenters
Chief Justice John Roberts voted to uphold Mississippi’s 15-week ban but refused to join the majority in overruling Roe and Casey outright. He would have discarded the viability line without eliminating the constitutional right. His position created a split within the case: the Mississippi law was upheld 6–3, but the decision to overturn Roe was 5–4, with Roberts on the losing side of that question.11Oyez. Dobbs v. Jackson Women’s Health Organization
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote a joint dissent, a format that itself signaled the depth of their disagreement. They accused the majority of reversing course “for one reason and one reason only: because the composition of this Court has changed.” The decision, they warned, weakened stare decisis far beyond abortion and created “profound legal instability” by showing that long-settled constitutional rights could be stripped away when the Court’s membership shifted.9Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
How the Court Changed Between the Two Cases
The shift from a 7–2 majority recognizing a right to abortion to a 5–4 majority eliminating it happened through personnel, not new constitutional text. None of the seven justices in the Roe majority remained on the bench by 2022. The two Roe dissenters, White and Rehnquist, were eventually replaced by justices who shared their skepticism of unenumerated rights. The philosophical shift that Casey’s dissenters had come one vote short of achieving in 1992 was completed thirty years later by a Court reshaped largely by a single administration.
The dissenters in both cases turned out to have written for a future majority. Rehnquist’s 1868 argument became Alito’s controlling reasoning in Dobbs. The Casey plurality’s warning about stare decisis became the Dobbs dissenters’ central complaint. The identity of the nine justices in any given year, more than the text of the Constitution, decided which set of arguments held the Court.