The Roe v. Wade Supreme Court decision, handed down on January 22, 1973, recognized a constitutional right to abortion under the 14th Amendment’s Due Process Clause and struck down a Texas law that criminalized the procedure except to save the mother’s life.1Library of Congress. Roe v. Wade The 7–2 ruling controlled American abortion law for nearly fifty years. It no longer does. In 2022, the Court overturned Roe in Dobbs v. Jackson Women’s Health Organization and returned the authority to regulate abortion to state legislatures.
What the Court Held in 1973
The case began in 1970, when a pregnant Texas woman using the pseudonym Jane Roe sued Dallas County District Attorney Henry Wade, arguing that the state’s near-total ban on abortion violated her constitutional rights.2Justia U.S. Supreme Court Center. Roe v. Wade The Texas statute was typical of its era. By 1910, every state banned abortion at all stages of pregnancy, with narrow exceptions to save the patient’s life, and those laws had stood largely unchanged for over a century.
Justice Harry Blackmun, writing for the majority, located the right to abortion within the “liberty” protected by the 14th Amendment’s Due Process Clause.3Constitution Annotated. Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine The Court read that liberty to include a right to personal privacy broad enough to cover a woman’s decision about pregnancy, building on Griswold v. Connecticut, the 1965 case that had struck down a state ban on contraceptives for married couples.4Justia U.S. Supreme Court Center. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right was not absolute. The Court acknowledged that states had legitimate interests in protecting maternal health and potential fetal life, and those interests grew stronger as a pregnancy progressed. But regulations touching the right had to survive strict scrutiny, meaning the state needed a compelling justification to interfere. Justices Byron White and William Rehnquist dissented, arguing that the Constitution contained no such right and that the question belonged to state legislatures.
The Trimester Framework
To balance the privacy right against the state’s interests, the Court divided pregnancy into three stages, each with a different legal rule.
- During the first trimester, the decision belonged to the woman and her physician. The state had no interest strong enough to justify restriction.2Justia U.S. Supreme Court Center. Roe v. Wade
- During the second trimester, the state could regulate to protect maternal health, for example by requiring the procedure to take place in licensed medical facilities, but could not ban it.1Library of Congress. Roe v. Wade
- After viability, generally 24 to 28 weeks, the state’s interest in potential life became compelling enough to permit a ban, so long as the law included exceptions to protect the mother’s life or health.
The framework was tied to the medical reality of the early 1970s. Viability was not possible much earlier than the third trimester, and first-trimester procedures were statistically safer than childbirth. As medical technology shifted the viability line earlier, that rigid structure became the ruling’s most contested feature.
How Casey Reshaped Roe
Nineteen years later, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) reaffirmed what a plurality called Roe’s “essential holding”: a woman’s right to choose abortion before viability without undue interference from the state.5Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey But Casey scrapped the trimester framework. In its place, the Court adopted the “undue burden” test: a regulation was unconstitutional only if it placed a substantial obstacle in the path of someone seeking an abortion before viability.6Supreme Court of the United States. Planned Parenthood of Southeastern Pennsylvania v. Casey
That was a looser standard than Roe’s strict scrutiny. Casey itself upheld Pennsylvania’s informed consent rule, a 24-hour waiting period, and a parental consent requirement for minors, striking down only a spousal notification provision. Over the next thirty years, states passed hundreds of regulations testing where the undue burden line ran, from mandatory ultrasounds to clinic building codes to gestational limits pegged to earlier estimates of viability.
How Dobbs Ended Roe
Dobbs v. Jackson Women’s Health Organization overruled both Roe and Casey in June 2022. The case began as a challenge to a Mississippi law banning most abortions after 15 weeks, well before viability.7Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization Instead of adjusting the viability line, the majority held that the Constitution does not confer any right to abortion and returned regulatory authority to state legislatures.8Constitution Annotated. Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine
Justice Samuel Alito’s majority opinion applied a historical test, asking whether the claimed right was “deeply rooted in the Nation’s history and traditions.” The Court surveyed common-law and statutory abortion restrictions before and after the 14th Amendment’s ratification in 1868 and concluded no such right existed in American legal tradition until Roe created one. Because the right lacked historical roots, it did not qualify as a protected liberty under the Due Process Clause.
On stare decisis, Alito argued the doctrine carries less weight when a prior decision was “egregiously wrong” and had generated unworkable litigation. The majority characterized both the trimester framework and the undue burden test as judicially crafted regulatory schemes with no basis in constitutional text. Justices Breyer, Sotomayor, and Kagan dissented jointly, writing that the majority had stripped away a right the country had relied on for nearly fifty years.7Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Where Abortion Law Stands Now
With the federal constitutional right gone, the 10th Amendment principle governs: powers not delegated to the federal government are reserved to the states.9Library of Congress. U.S. Constitution – Tenth Amendment The same procedure is now protected in some states and criminalized in others.
Thirteen states had “trigger laws” designed to ban abortion automatically if Roe fell, and those bans took effect within days or weeks of Dobbs. As of early 2026, 13 states maintain total bans throughout pregnancy, and 28 more prohibit the procedure after a specified gestational point. Penalties fall primarily on medical providers, though the details vary. Going the other direction, voters in California, Michigan, Vermont, Ohio, Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York have passed constitutional amendments protecting abortion access. Similar measures failed in Florida, South Dakota, and Kentucky. Kansas voters defeated a measure that would have removed protections. Nebraska voters passed a first-trimester limit in 2024.
Shield Laws Between States
The patchwork has produced a new kind of conflict when residents of restrictive states obtain care in states that protect it. Twenty-two states and Washington, D.C., have enacted “shield laws” that protect providers and patients from out-of-state legal consequences for reproductive care lawful where it was provided. Eight of those states extend protections to telehealth care regardless of the patient’s location. The theory behind shield laws has not been fully tested in federal court and raises unsettled questions about interstate comity and the Full Faith and Credit Clause.
Medication Abortion
Mifepristone, approved by the FDA in 2000 and used with misoprostol, now accounts for roughly 65% of clinician-provided abortions, and more than one in four abortions are accessed through telehealth. In 2023, the FDA permanently dropped the in-person dispensing requirement, allowing telehealth prescriptions and mail delivery nationwide. A federal appeals court ruled in favor of restrictions, but as of May 2026, the Supreme Court has blocked that ruling and left the FDA’s rules in effect while litigation continues.10Women’s Healthcare. Supreme Court Preserves Access to Mifepristone via Telehealth – At Least for Now
A separate thread involves the Comstock Act, an 1873 federal law prohibiting the mailing of materials intended for producing an abortion. Some states and legal advocates argue the statute bans mailing mifepristone nationwide, regardless of FDA approval. The Department of Justice’s Office of Legal Counsel concluded in 2022 that the Comstock Act does not prohibit mailing these drugs when the sender lacks the intent that they be used unlawfully.11U.S. Department of Justice. Application of the Comstock Act to the Mailing of Prescription Drugs Whether that interpretation survives future litigation or a change in administration is unsettled.
Emergency Care Under EMTALA
The Emergency Medical Treatment and Labor Act (EMTALA), passed in 1986, requires hospitals receiving Medicare funding to stabilize patients with emergency medical conditions. That obligation has collided with state bans where terminating a pregnancy is the medically necessary stabilizing treatment. The Biden administration issued 2022 guidance asserting EMTALA requires emergency abortions even in states with bans. Idaho challenged that guidance in Moyle v. United States, and the Supreme Court dismissed the case in 2024 without resolving the underlying question.12Supreme Court of the United States. Moyle v. United States (06/27/2024) In June 2025, the Department of Health and Human Services rescinded the 2022 guidance, though Secretary Robert F. Kennedy Jr. stated EMTALA “continues to ensure pregnant women facing medical emergencies have access to stabilizing care.” The practical meaning of that statement remains contested.
Federal Legislation
Congress has considered federal legislation to codify abortion rights since Dobbs. The Women’s Health Protection Act was most recently introduced as S.2150 in the 119th Congress (2025–2026) and has not advanced out of committee.13Congress.gov. Women’s Health Protection Act Without 60 votes to overcome a Senate filibuster, federal legislation in either direction faces steep barriers. The legal status of abortion is determined state by state, shaped by ballot initiatives, state court rulings, and the unresolved federal battles over medication access and emergency care.