Supreme Court Abortion Cases: From Roe to Dobbs and Mifepristone

Supreme Court abortion cases fall into three eras: the roughly fifty years when the Fourteenth Amendment protected a right to end a pregnancy, beginning with Roe v. Wade in 1973 and reframed by Planned Parenthood v. Casey in 1992; the 2022 decision in Dobbs v. Jackson Women’s Health Organization that erased that right and handed the question back to state legislatures; and the ongoing federal litigation over emergency care, medication abortion, and a nineteenth-century mailing statute that Dobbs left unresolved. What follows walks through the decisions that built the law, the one that dismantled it, and the cases that will shape what comes next.

Roe v. Wade and the Right the Court Recognized in 1973

In Roe v. Wade, the Court held that the Due Process Clause of the Fourteenth Amendment protects a right to privacy broad enough to cover a woman’s decision to end a pregnancy, and struck down a Texas statute that criminalized abortion at all stages.¹

To balance state interests against that liberty, the Court built a trimester framework. In the first trimester, the decision belonged to the patient and physician. In the second, states could regulate the procedure in ways reasonably related to maternal health. After viability, meaning the point at which a fetus can survive outside the womb, states could prohibit abortion entirely, so long as they allowed exceptions to preserve the life or health of the patient.¹

Critics argued the Court had invented a right with no basis in the constitutional text. Supporters called it essential protection for bodily autonomy. For two decades after Roe, the Court kept taking cases that tested the trimester framework’s edges, allowing more state regulation while leaving the core holding in place.

Planned Parenthood v. Casey and the Undue Burden Standard

By 1992, many observers expected Roe to fall. Instead, in Planned Parenthood of Southeastern Pennsylvania v. Casey, a divided Court reaffirmed what it called Roe’s “essential holding” in three parts: a person has a right to choose abortion before viability without undue state interference; the state may restrict the procedure after viability if exceptions exist for life and health; and the state has legitimate interests from the outset of pregnancy in protecting both the pregnant person’s health and potential fetal life.²

Casey replaced the trimester framework with a single test. A state regulation was unconstitutional if its purpose or effect was to place a substantial obstacle in the path of someone seeking a pre-viability abortion. Regulations meant to persuade a person to choose childbirth were permissible, as long as they stopped short of substantial obstacles.²

That framework governed the next thirty years. States tested it with waiting periods, informed consent rules, parental notification laws, and clinic regulations, and courts applied the undue burden standard to each.

Gonzales v. Carhart and the Federal Partial-Birth Abortion Ban

In 2007, the Court upheld a federal ban on a specific late-term abortion method in Gonzales v. Carhart. The Partial-Birth Abortion Ban Act of 2003 criminalized what Congress described as a procedure with a “disturbing similarity to the killing of a newborn infant.” The Court found the ban did not impose an undue burden, even though it contained no exception for the health of the pregnant person.³

The absence of a health exception mattered because earlier cases had consistently required one. The majority reasoned that medical uncertainty about whether the banned procedure was ever necessary did not foreclose legislative action. The decision signaled a growing willingness to defer to legislatures on abortion restrictions, a posture that would culminate fifteen years later.

Dobbs v. Jackson and the End of the Federal Right

In Dobbs v. Jackson Women’s Health Organization, the Court overruled both Roe and Casey, holding that the Constitution does not confer a right to abortion and that authority over the issue belongs to state legislatures.⁴ The case came out of a challenge to Mississippi’s ban on abortion after fifteen weeks, well before viability. Rather than uphold that law within the Casey framework, the majority used the case to dismantle the framework itself.

The majority applied a “history and tradition” test, asking whether the right to abortion is deeply rooted in the nation’s history and essential to the scheme of ordered liberty. Finding no such historical basis, the Court concluded that abortion is not a fundamental right protected by the Fourteenth Amendment.⁵ The viability line, the undue burden test, and the structure of judicial oversight built since 1973 all disappeared in a single decision.

The New Standard of Review

Because abortion is no longer classified as a fundamental right, laws restricting or banning the procedure now receive rational basis review, the most deferential standard in constitutional law. A regulation is presumed valid and will survive challenge if the legislature could have reasonably believed it serves a legitimate government interest. The Dobbs opinion specifically identified several interests that qualify: protecting prenatal life, safeguarding the integrity of the medical profession, and maintaining public health and safety.⁵

That is a steep drop from the scrutiny that used to apply. Under the undue burden test, courts actively examined whether regulations placed substantial obstacles in a patient’s path. Under rational basis review, courts almost never strike down laws. The practical effect is that federal-court challenges to state abortion bans now face long odds unless the challenger can attach another constitutional hook, like an equal protection claim or a federal preemption argument.

The Dissent and Stare Decisis

The decision to overturn fifty years of precedent drew a sharp joint dissent from Justices Breyer, Kagan, and Sotomayor, who argued the ruling undermined the Constitution’s promise of freedom and equality.⁶ Stare decisis, the principle that courts should generally follow their prior decisions, ordinarily requires strong justification before overruling settled law. The majority acknowledged this but concluded that Roe was “egregiously wrong” from the start and that reliance interests did not outweigh the need to correct it.

What Dobbs Might Mean for Other Rights

The Dobbs majority went out of its way to say the decision should not cast doubt on precedents unrelated to abortion, calling abortion “inherently different” because it involves what earlier cases called “potential life.”⁵

Justice Thomas wrote separately to disagree. In a concurrence, he argued that the Court should reconsider all of its substantive due process precedents, naming Griswold v. Connecticut (contraception), Lawrence v. Texas (private consensual sexual conduct), and Obergefell v. Hodges (same-sex marriage). Thomas called each of those decisions “demonstrably erroneous” and said the Court has a duty to correct them.⁵

No other justice joined that concurrence, and the majority explicitly disclaimed any intent to revisit those cases. Whether that reassurance holds is an open question. The “deeply rooted in history and tradition” analysis Dobbs used could in theory be applied to any substantive due process right.

The State Landscape After Dobbs

With the federal constitutional floor gone, the legal status of abortion now depends almost entirely on where a person lives. As of early 2026, thirteen states enforce near-total bans, and roughly two dozen more restrict the procedure by gestational duration, with cutoffs ranging from six weeks to around twenty-two weeks. Fewer than a dozen states plus the District of Columbia impose no gestational limits at all.

Ballot measures have reshaped the map. In 2024, voters in Arizona, Colorado, Maryland, Missouri, Montana, and New York approved constitutional amendments protecting abortion rights. Nevada approved a similar measure but requires a second vote in 2026 before it takes effect. Measures in Florida and South Dakota failed, and Nebraska voters approved a restriction at twelve weeks. Other states have moved the other direction, tightening bans or adding enforcement mechanisms. The result is a legal landscape that changes frequently and varies dramatically across state lines, so anyone trying to understand what is legal where they live needs to check current local law.

Emergency Care and EMTALA

One of the sharpest post-Dobbs conflicts involves emergency rooms. The Emergency Medical Treatment and Labor Act requires every hospital that participates in Medicare to screen and stabilize any patient who arrives with an emergency medical condition.⁷ The federal government argued that this obligation includes performing an abortion when it is the only way to stabilize a patient whose health is seriously at risk, even in states that criminalize the procedure.

That argument reached the Court in Moyle v. United States (2024), which arose from Idaho’s Defense of Life Act, making performance of an abortion punishable by up to five years in prison. The federal government claimed EMTALA preempts state criminal penalties when emergency stabilization requires the procedure. Rather than resolving the preemption question, the Court dismissed the case as improvidently granted and vacated its earlier stay, letting a lower court injunction that required Idaho hospitals to follow federal stabilization requirements take effect again.⁸

The dismissal left the core question unanswered: does federal emergency care law override state abortion bans? The issue is almost certain to return to the Court. In the meantime, physicians in states with strict bans operate under significant legal uncertainty.

Medication Abortion at the Court

Mifepristone, the first drug in the two-drug medication abortion regimen, accounts for the majority of abortions in the United States. In FDA v. Alliance for Hippocratic Medicine (2024), a group of physicians and medical associations challenged FDA decisions expanding access to the drug, including allowing telemedicine prescribing and mail shipment. The Court unanimously dismissed the challenge on standing grounds, finding the plaintiffs had no concrete injury because none of them prescribe or use mifepristone.⁹

Justice Kavanaugh’s opinion emphasized that moral, ideological, and policy objections to a federal agency’s actions do not give someone the right to sue in federal court. Article III standing requires a specific, personal injury traceable to the challenged action.⁹ The decision left the FDA’s regulatory framework intact but did not resolve whether states can override FDA approval.

Can States Ban an FDA-Approved Drug?

That merits question is being litigated elsewhere. In GenBioPro v. Sorsaia, a generic mifepristone manufacturer argued that the FDA’s comprehensive regulatory scheme preempts West Virginia’s state-level ban. In 2025, the Fourth Circuit rejected the broad preemption argument, holding that Congress did not clearly intend to displace state authority over health and safety when it gave the FDA power to regulate drugs.¹⁰ The court did find that West Virginia’s specific telemedicine restriction on prescribing mifepristone was preempted.

Related cases have reached the Supreme Court during the 2025-2026 term, styled as Danco Laboratories v. Louisiana and GenBioPro v. Louisiana. The Court has been asked to decide whether states can effectively ban an FDA-approved drug. The outcome will determine whether FDA approval of mifepristone functions as a nationwide floor states cannot undercut, or whether states retain full authority to prohibit drugs the federal government has deemed safe and effective.

The Comstock Act as an Open Question

A nineteenth-century federal statute has become unexpectedly relevant. The Comstock Act, codified at 18 U.S.C. § 1461, declares “nonmailable” every article or thing designed or intended for producing an abortion, along with any written material giving information about where or how to obtain one.¹¹ A companion provision, 18 U.S.C. § 1462, extends the same prohibition to shipments by common carriers and interactive computer services.

For the past half century, neither statute was enforced against abortion-related mailings. During the Biden administration, the Department of Justice took the formal position that the Act does not prohibit mailing mifepristone or misoprostol when the sender lacks intent for the drugs to be used unlawfully. That interpretation relied on federal court decisions from the 1930s holding that items with lawful uses are not banned by the statute simply because they could also be used illegally.

A different administration could reverse that interpretation and direct the Postal Service or the Department of Justice to enforce the statute literally. If that happened, it could effectively block medication abortion by mail nationwide, regardless of state law. The Comstock Act has not been tested in modern litigation, and how courts would interpret its sweeping language in the post-Dobbs era is genuinely uncertain.

Speech, Access, and the Cases at the Clinic Door

The Court has ruled on abortion-adjacent speech and access questions twice in recent memory. In National Institute of Family and Life Advocates v. Becerra (2018), the Court struck down a California law requiring crisis pregnancy centers to post notices about state-funded services that include abortion, finding that compelling those centers to deliver a message they oppose likely violates the First Amendment.¹²

In McCullen v. Coakley (2014), the Court invalidated a Massachusetts law creating thirty-five-foot buffer zones around reproductive health clinic entrances. While acknowledging the state’s interest in public safety and unobstructed access, the Court held that the buffer zones burdened substantially more speech than necessary to achieve those goals.¹³ States can still regulate the time, place, and manner of speech near clinics, but the regulations must be narrowly drawn.

Separately, the Freedom of Access to Clinic Entrances Act, codified at 18 U.S.C. § 248, makes it a federal crime to use force, threats, or physical obstruction to interfere with someone obtaining or providing reproductive health services, and to intentionally damage clinic property.¹⁴ The FACE Act applies to reproductive health facilities in every state, whether the state permits or prohibits abortion, and protects access to whatever services the clinic lawfully provides.

Federal Funding and the Hyde Amendment

Federal taxpayer dollars generally cannot pay for abortions. The Hyde Amendment, a legislative rider attached annually to the Health and Human Services appropriations bill since 1976, prohibits covered federal funds from being used for the procedure, with three exceptions: pregnancies resulting from rape, pregnancies resulting from incest, and cases where the pregnant person would die without the procedure.¹⁵

The Court upheld the Hyde Amendment in Harris v. McRae (1980), holding that the Constitution protects the freedom to choose an abortion but does not obligate the government to fund the exercise of that right. The Court distinguished between the government placing obstacles in someone’s path and the government declining to pay for medical expenses.¹⁶ That distinction meant Medicaid, the federal-state health insurance program for low-income individuals, could exclude abortion coverage even when the procedure was medically necessary.

The Hyde Amendment is not a permanent statute. Because it is a rider, Congress must renew it each year during appropriations. It has been renewed continuously since 1976 with bipartisan support.

1
Justia U.S. Supreme Court Center. Roe v. Wade, 410 U.S. 113 (1973)
2
Justia U.S. Supreme Court Center. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
3
Justia U.S. Supreme Court Center. Gonzales v. Carhart, 550 U.S. 124 (2007)
4
Justia U.S. Supreme Court Center. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)
5
Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
6
National Constitution Center. Dobbs v. Jackson Women’s Health Organization
7
Office of the Law Revision Counsel. 42 U.S. Code 1395dd – Examination and Treatment for Emergency Medical Conditions and Women in Labor
8
Supreme Court of the United States. Moyle v. United States
9
Supreme Court of the United States. FDA v. Alliance for Hippocratic Medicine
10
United States Court of Appeals for the Fourth Circuit. GenBioPro, Inc. v. Sorsaia
11
Office of the Law Revision Counsel. 18 U.S. Code 1461 – Mailing Obscene or Crime-Inciting Matter
12
Supreme Court of the United States. National Institute of Family and Life Advocates v. Becerra
13
Justia U.S. Supreme Court Center. McCullen v. Coakley, 573 U.S. 464 (2014)
14
Office of the Law Revision Counsel. 18 U.S. Code 248 – Freedom of Access to Clinic Entrances
15
Congress.gov. The Hyde Amendment: An Overview
16
Justia U.S. Supreme Court Center. Harris v. McRae, 448 U.S. 297 (1980)