Roe v. Wade established that the U.S. Constitution protects a person’s right to choose an abortion before fetal viability, grounded in a right to privacy the Supreme Court drew from the Fourteenth Amendment’s Due Process Clause. The 7–2 decision, issued on January 22, 1973, struck down a Texas law that criminalized abortion except to save the mother’s life and set the rules for abortion regulation nationwide for nearly fifty years.1Justia. Roe v. Wade
A Constitutional Right to Privacy
Justice Harry Blackmun, writing for the majority, held that the “liberty” protected by the Fourteenth Amendment is broad enough to cover a person’s decision whether to continue a pregnancy.2Cornell Law School. Jane Roe, et al., Appellants, v. Henry Wade A state that criminalizes that choice, the Court reasoned, intrudes on a protected sphere of individual autonomy.
The privacy reasoning built on Griswold v. Connecticut, the 1965 case that struck down a ban on contraceptive use by married couples. Griswold found that several amendments in the Bill of Rights create overlapping zones of privacy, even though the word never appears in the Constitution.1Justia. Roe v. Wade Roe carried that framework from contraception into the abortion decision itself. The immediate consequence was doctrinal: any state law restricting abortion now had to survive strict judicial scrutiny rather than clear the low bar of showing a rational basis.
Justices Byron White and William Rehnquist dissented. They argued the Constitution contains no such privacy right and that abortion policy belonged to state legislatures.
The Trimester Framework
To translate the privacy right into workable rules, the Court tied state authority to the three trimesters of pregnancy. The idea was to balance a person’s privacy against two state interests that grow stronger as pregnancy progresses: maternal health and potential fetal life.
- In the first trimester, the state was almost entirely barred from interfering. Because medical evidence at the time showed first-trimester abortion to be safer than childbirth, the Court found no health justification for restrictions. The decision belonged to the patient and their doctor.3Congress.gov. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
- In the second trimester, the state could regulate the procedure, but only in ways reasonably related to protecting the patient’s health, such as facility standards or practitioner qualifications.3Congress.gov. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
- In the third trimester, once the fetus reached viability, the state could ban abortion outright, except when necessary to preserve the life or health of the patient.3Congress.gov. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
The structure gave legislators and lower courts a concrete timeline. It also drew heavy criticism from both directions, and the Court itself moved away from it in 1992.
Viability as the Legal Threshold
The most consequential line Roe drew was at viability, the point when a fetus can survive outside the womb, even with medical help. The 1973 opinion placed that milestone at roughly 24 to 28 weeks of gestation.1Justia. Roe v. Wade Before viability, the pregnant person’s rights controlled. After viability, the state’s interest in protecting potential life became strong enough to justify a ban.
Tying the cutoff to a medical fact rather than a fixed calendar date was deliberate. The Court acknowledged that advances in neonatal care could shift viability earlier, and the legal standard would move with the medicine.3Congress.gov. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine Viability remained the controlling threshold in American abortion law for the next 49 years.
State Interests and the Meaning of Health
Roe did not treat the privacy right as absolute. The Court recognized two state interests that intensify over the course of a pregnancy: protecting the patient’s health and protecting potential fetal life.4Congress.gov. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine The health interest justified medical safety regulations once the procedure’s risks began to exceed those of childbirth. The potential-life interest became compelling at viability.
The companion case decided the same day, Doe v. Bolton, defined what “health” meant in this context. A doctor’s medical judgment, the Court ruled, could take account of physical, emotional, psychological, and familial factors, along with the patient’s age.5Justia. Doe v. Bolton That broad definition meant the health exception in post-viability bans was not confined to life-threatening emergencies, a point that became a persistent flashpoint for critics of the decision.
How Casey Modified Roe in 1992
Nearly two decades later, the Court kept Roe’s core but rebuilt its machinery. In Planned Parenthood of Southeastern Pennsylvania v. Casey, a divided Court abandoned the trimester structure as too rigid and too dismissive of the state’s interest in potential life before viability.6Justia. Planned Parenthood of Southeastern Pa. v. Casey In its place came the “undue burden” test: a pre-viability regulation is unconstitutional if its purpose or effect is to place a substantial obstacle in the path of someone seeking an abortion.
Casey was more permissive of state regulation than Roe had been. Under the trimester framework, virtually any first-trimester restriction was suspect. Under Casey, states could impose waiting periods, informational disclosures, and parental involvement requirements for minors at any point before viability, as long as those rules did not amount to a substantial obstacle.6Justia. Planned Parenthood of Southeastern Pa. v. Casey
What Casey preserved was the piece of Roe that mattered most. The plurality reaffirmed that no state could prohibit a person from ending a pregnancy before viability, and that post-viability bans still had to include exceptions for the patient’s life or health.6Justia. Planned Parenthood of Southeastern Pa. v. Casey From 1992 until 2022, it was Casey’s undue burden test, not Roe’s trimesters, that courts actually applied.
Roe No Longer Controls
On June 24, 2022, the Supreme Court overruled both Roe and Casey in Dobbs v. Jackson Women’s Health Organization. The majority held that the Constitution does not confer a right to abortion and returned the question to state legislatures.7Justia. Dobbs v. Jackson Women’s Health Organization Justice Samuel Alito wrote the opinion for a five-justice majority, with three justices dissenting.
The Dobbs majority reasoned that a right to abortion is not deeply rooted in American history or tradition, pointing to the widespread criminalization of abortion in the nineteenth century as evidence that the framers of the Fourteenth Amendment did not understand it to protect such a right.8Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization What Roe established as a matter of federal constitutional law is no longer in force. Its holdings on privacy, the trimester framework, and viability remain historically important, but the legality of abortion now turns on state law.