Roe v. Wade protected the decision to end a pregnancy as a fundamental right under the Fourteenth Amendment’s guarantee of personal liberty. Decided 7–2 in 1973, the ruling stopped states from banning abortion before fetal viability, forced any later ban to include exceptions for the pregnant person’s life and health, and shielded physicians from criminal prosecution when performing the procedure during constitutionally protected stages.1Justia. Roe v. Wade, 410 US 113 (1973) The Supreme Court overturned Roe in 2022, so these protections no longer exist as a matter of federal constitutional law, but understanding what the decision actually created is the starting point for understanding what was lost.
A Fundamental Right Rooted in the Fourteenth Amendment
The Court grounded the decision in the Due Process Clause of the Fourteenth Amendment, which bars states from depriving any person of liberty without due process of law. The majority read “liberty” to include a right to privacy broad enough to cover deeply personal decisions about family, reproduction, and medical care. That right, the Court held, reached the decision whether to end a pregnancy.1Justia. Roe v. Wade, 410 US 113 (1973)
The reasoning built on Griswold v. Connecticut (1965), which struck down a state ban on contraception for married couples and recognized “zones of privacy” the government cannot easily enter.2Justia. Griswold v. Connecticut, 381 US 479 (1965) Roe extended that logic from contraception to the choice to continue or end a pregnancy.
Classifying the abortion decision as a fundamental right had a concrete legal consequence. Government restrictions on fundamental rights must survive strict scrutiny, the most demanding standard of judicial review. To clear that bar, a state had to prove its law served a compelling government interest and was the least restrictive means of achieving it.1Justia. Roe v. Wade, 410 US 113 (1973) Most abortion restrictions could not meet that test. In practice, this put the decision on the same legal footing as core freedoms like speech and religion, and meant the government could not compel someone to carry a pregnancy to term without a truly compelling justification.
What States Could and Could Not Do at Each Stage
To balance the individual’s right against state interests, the Court organized its rules around the three trimesters of pregnancy. The framework told legislatures precisely how much power they had at each stage.
In the first trimester, the state could not interfere with the abortion decision at all. The Court reasoned that early abortion was statistically safer than childbirth, so the government had no compelling health-based justification for regulation. The choice belonged to the pregnant person and their physician.3Constitution Annotated. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
In the second trimester, the state’s interest in maternal health became strong enough to justify some regulation. States could set patient-safety requirements such as facility standards or qualifications for medical staff. What they could not do was ban the procedure or build obstacles designed to block access rather than protect health.3Constitution Annotated. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine
The third trimester introduced viability, the point at which a fetus can survive outside the womb, which the Court placed at roughly 24 to 28 weeks of gestation. After viability, the state’s interest in potential life became compelling enough to allow an outright ban. Even then, every ban had to include exceptions when the procedure was necessary to preserve the life or health of the pregnant person.3Constitution Annotated. Abortion, Roe v. Wade, and Pre-Dobbs Doctrine No state interest could override the patient’s survival.
Protection for Doctors and Medical Judgment
Before Roe, physicians who performed abortions risked criminal prosecution and loss of their medical licenses. Those penalties pushed the procedure underground, where unqualified practitioners and unsafe conditions caused significant harm.
Roe removed the threat of prosecution for physicians performing the procedure during constitutionally protected stages. The Court emphasized that the abortion decision is “inherently, and primarily, a medical decision” and that responsibility for it must rest with the attending physician.4Legal Information Institute. Jane Roe et al., Appellants, v. Henry Wade In the first trimester, the state had no authority to second-guess a doctor’s medical judgment. That took the government out of the exam room and let medical standards, rather than criminal codes, govern patient care.
How Casey Narrowed the Protections
The trimester framework lasted less than two decades. In Planned Parenthood v. Casey (1992), the Supreme Court kept Roe’s core holding but replaced the trimester structure with a more flexible standard. The Court rejected the framework as a “rigid prohibition on all previability regulation aimed at the protection of fetal life.”5Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992)
In its place, Casey adopted the “undue burden” standard. A state regulation was unconstitutional if its purpose or effect was to place a substantial obstacle in the path of someone seeking an abortion before viability. Regulations that fell short of a substantial obstacle were permissible as long as they were reasonably related to a legitimate state interest such as maternal health or informed consent.5Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992) That was a meaningful loosening. Under Roe, first-trimester regulations were simply off-limits. Under Casey, states could regulate at any point before viability so long as they did not create a substantial obstacle.
Casey preserved two things from Roe as non-negotiable: the right to choose abortion before viability without a state ban, and the requirement that any post-viability ban include exceptions for the life and health of the pregnant person.5Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992) The core of what Roe protected survived Casey. The strict scrutiny that made those protections difficult to breach did not.
What Remains After Dobbs
In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned both Roe and Casey. The majority held that “the Constitution does not confer a right to abortion” and that neither decision had any grounding in constitutional text, history, or precedent.6Justia. Dobbs v. Jackson Womens Health Organization, 597 US (2022) By a 6–3 vote, the Court returned authority to regulate abortion entirely to state legislatures.
Every federal constitutional protection Roe had created vanished with that ruling. States are no longer bound by viability as a threshold, no longer required to include life-or-health exceptions in abortion bans, and no longer subject to federal judicial review of their abortion restrictions beyond the rational basis test, the lowest standard in constitutional law.7Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization, Opinion of the Court Whether someone has a legal right to abortion now depends on state law, including state constitutional amendments that voters in several states have passed since Dobbs. What Roe protected, it protected as a matter of federal constitutional law, and that layer of protection is gone.