Not under the U.S. Constitution, according to the current Supreme Court. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned Roe v. Wade (1973), which guaranteed a constitutional right to abortion. Some state constitutions, however, independently protect abortion rights.
In Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. And after fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health.
For the following 49 years, states, health care providers, and citizens fought over what limits the government could place on abortion access, particularly during the second and third trimesters. But abortion was fundamentally legal in all 50 states during that period.
Writing for the majority in Dobbs, Justice Samuel Alito said that the only legitimate unenumerated rights — that is, rights not explicitly stated in the Constitution — are those “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Abortion, the majority held, is not such a right.
Following Dobbs, reproductive rights are being decided state by state. Constitutions in 10 states — Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico — have been interpreted by state high courts to guarantee the right to abortion or protect access more strongly than the federal constitution. Other state legislatures have passed laws protecting abortion rights. Many states, however, have made abortion illegal.
The road to Roe
Abortion was illegal in most states in the 1960s, often with no exceptions for cases of rape or threat to life. A pair of high-profile crises, however, shined a spotlight on the impact of these restrictions.
Beginning in the late 1950s, thousands of babies were born with severe birth defects after their mothers took the morning sickness drug thalidomide while pregnant. The most well-known case was that of Sherri Finkbine, a host of the children’s television program Romper Room, who was forced to travel to Sweden to obtain an abortion. A Gallup poll showed, perhaps surprisingly given the legal backdrop, that a majority of Americans supported Finkbine’s decision.
Shortly after the thalidomide scandal, an epidemic of rubella, or German measles, swept across the country. Babies that survived rubella in utero were often born with a wide range of disabilities such as deafness, heart defects, and liver damage. (A rubella vaccine didn’t become available until 1971.)
It was in this environment of maternal risk that high-profile doctors like Alan Guttmacher began to argue publicly that abortion should be treated like other medical procedures — as a decision to be made between physician and patient.
Griswold v. Connecticut (1965)
While thalidomide and rubella impacted public perspectives on abortion, a series of cases built the foundation for the coming revolution in abortion law. The first involved the right to contraception, and the story begins in the 19th century.
In 1879, Connecticut senator P.T. Barnum (yes, that P.T. Barnum) introduced a bill barring not only contraceptives but also the distribution of information relating to them. The Barnum Act was still on the books in Connecticut in 1960, when the Food and Drug Administration approved the first oral contraceptive. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, was fined $100 for violating the law. Her appeal went all the way to the Supreme Court.
In Griswold v. Connecticut, a seven-justice majority struck down the Barnum Act. Justice William O. Douglas explained that the Bill of Rights implies a right to privacy because when viewed as a coherent whole, it focuses on limiting government intrusions. The Griswold majority held that the government cannot prevent married couples from accessing contraception. (At the time, the justices did not extend the right to unmarried people.) Griswold’s contention that the Constitution creates a zone of privacy into which the government cannot enter paved the way for Roe, among other landmark decisions.
Eisenstadt v. Baird (1972)
The road from Griswold to Roe was not perfectly straight. Two years after Griswold, reproductive rights activist William Baird offered contraceptives to an unmarried woman after a lecture on contraception to students at Boston University. He was sentenced to three months in prison.
Like Estelle Griswold, Baird appealed his conviction to the Supreme Court. In Eisenstadt v. Baird, the Justices extended Griswold. Justice William Brennan, writing for the six-justice majority, explained that the 14th Amendment guarantees equal protection under the law. There was no reason to treat married and unmarried people differently with regard to contraception.
United States v. Vuitch (1971)
Over the course of nine years, Washington, DC,–based physician Milan Vuitch was arrested 16 times for performing abortions, which had been illegal in the district since 1901 except “as necessary for the preservation of the mother’s life or health.”
Vuitch appealed his eventual conviction, arguing in part that the exception for “health” was unconstitutionally vague. The Supreme Court disagreed in United States v. Vuitch. Taking a broad view of the word “health,” the justices ruled that abortion was legal in the district whenever necessary to protect mental or physical health.
The significance of Vuitch, however, was to be short-lived. Roe v. Wade was already wending its way through the courts by the time of the decision. The day after they decided Vuitch, the justices voted to hear Roe.
The parties to Roe
Texan Norma McCorvey became pregnant for the third time in 1969. Struggling with drug and alcohol use, she previously relinquished responsibility for her first two children. She decided that she did not want to continue the pregnancy.
Texas law, however, allowed abortion only to save the patient’s life. With McCorvey six months pregnant, Texas lawyers Linda Coffee and Sarah Weddington filed a suit on her behalf in federal court under the pseudonym Jane Roe.
Henry Wade was a legendary and controversial district attorney with an impressive conviction rate, most famous for prosecuting Jack Ruby, who killed JFK’s assassin, Lee Harvey Oswald. Wade was, however, an odd foil for pro-choice activists. He did not aggressively prosecute illegal abortions and said little about them.
The lower court
A three-judge panel of the U.S. District Court for the Northern District of Texas struck down Texas’s abortion ban, finding it overbroad and locating the right to reproductive choice in the 9th and 14th Amendments. Citing Griswold, the court noted that the Constitution guarantees “the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.” While the federal court declared the Texas law unconstitutional, it declined to immediately block its enforcement, putting Roe v. Wade on a fast track to the Supreme Court.
Norma McCorvey gave birth to a girl, Shelley Lynn, on June 2, 1970, fifteen days before the federal district court issued its ruling. The baby was adopted when she was three days old. Her identity was not known to the public until 2021.
The Roe v. Wade oral argument
Sarah Weddington, who was just 26 years old when she stood before the justices of the Supreme Court on December 13, 1971, built her case for the constitutional right to abortion around the 9th and 14th Amendments, arguing that “meaningful” liberty must include the right to terminate an unwanted pregnancy.
Although the justices were largely receptive to Weddington’s points, Justice Byron White demanded to know whether the right to abortion extended right up to the moment of birth. After some hesitation, Weddington answered yes. Legal personhood began at birth, Weddington claimed. Until that moment, there should be an unfettered constitutional right to abortion.
After Weddington sat down, Texas Assistant Attorney General Jay Floyd stood to defend the state law. He began, inexplicably, with a sexist joke: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The bafflingly inappropriate comment was followed by three seconds of dead silence.
There was, however, one moment of wit in the argument. When Floyd argued that a woman who becomes pregnant has already made her choice, Justice Potter Stewart shot back, “Maybe she makes a choice when she decides to live in Texas!” The retort brought roars of laughter from the gallery.
Of particular note is how little the oral argument focused on the history of abortion laws during the founding or the post–Civil War era when the 14th Amendment was ratified. The justices focused instead on the biological realities of abortion and the text of the Constitution itself.
Also interesting: Justice Harry Blackmun, who would write the majority opinion in Roe v. Wade, spoke only twice during the oral argument. By contrast, Justice Thurgood Marshall spoke more than 10 times, Justices White and William Brennan more than 20 times, and Justice Stewart more than 30. (Perhaps this was because Blackmun was initially inclined to write a much more restrained opinion than he ultimately did.)
The Roe v. Wade opinion
The Supreme Court handed down its decision on January 22, 1973. Seven of the nine justices agreed that the Due Process Clause of the 14th Amendment — which says that no state shall “deprive any person of life, liberty, or property, without due process of law” — implies a right to privacy. The majority seized upon Weddington’s definition of liberty, citing a series of prior cases indicating that the term “liberty” must be interpreted broadly in a free society.
The justices did, however, recognize that the state could place some limits on abortion if necessary to further a compelling state interest. The state’s ability to regulate increased as a pregnancy progressed. And after a fetus reached viability, the state could prohibit abortion, except when necessary to protect health or life.
Justices William Rehnquist and White dissented. Rehnquist argued that privacy, in the constitutional sense of illegal search and seizure, has nothing to do with abortion. In his view, since abortion bans implicate no fundamental rights, they must only have some rational basis, such as protecting a fetus. Foreshadowing the Dobbs decision in 2022, Rehnquist also declared that the only recognizable rights not explicitly listed in the Constitution are those with deep roots in the American legal tradition.
Doe v. Bolton (1973)
On the same day the Supreme Court decided Roe, it decided Doe v. Bolton, which challenged Georgia’s abortion ban. The Georgia law limited abortion to cases of documented rape, a severely disabled fetus, or a threat to life. Before the procedure, it was necessary to obtain the approval of a doctor, two additional consulting physicians, and a hospital committee. The law also permitted relatives to challenge the abortion decision. It was, in short, a burdensome process.
In another 7–2 vote, with Blackmun again writing for the majority, the Court ruled that although the rights identified in Roe are not absolute, Georgia’s restrictions violated the constitutional right to abortion. He noted that the law established hurdles that were far higher than those that had to be overcome for other surgical procedures.
White and Rehnquist again dissented.
Roe significantly reduced maternal mortality. A total of 39 women are known to have died from unsafe abortions in 1972, and this was almost certainly a drastic undercount. In 1975, there were only three such deaths. In 1965, eight years before Roe was decided, illegal abortion caused 17 percent of pregnancy-related deaths. In modern times, just 0.2 percent of people who undergo abortions even require hospitalization for complications.
It’s not entirely clear what effect Roe had on public attitudes toward abortion because public opinion was already in flux before the case was decided. In 1965, just 5 percent of Americans thought abortion should be legal for married people who simply didn’t want any more children. That number had risen to 36 percent by 1972, the year before Roe was decided. After Roe came down, pollsters began asking about abortion “for any reason,” and the polls show relative stability in the responses to that question since the mid-1970s.
Lingering resistance to abortion, particularly strong in certain parts of the country, led legislatures to test the decision’s boundaries. The Supreme Court issued many major abortion rulings up to the overturning of Roe v. Wade in the 2022 case Dobbs v. Jackson Women’s Health Organization.
- In Planned Parenthood v. Danforth (1976), the justices blocked a law requiring spousal consent for abortion.
- Maher v. Roe (1979) permitted states to exclude abortion services from Medicaid coverage.
- Colautti v. Franklin (1979) struck down an unconstitutionally vague Pennsylvania law that required physicians to try to save the life of a fetus that might have been viable.
- In Harris v. McRae (1980), the Court upheld the Hyde Amendment, a federal law that proscribed federal funding for abortions except when necessary to preserve life or as a result of rape or incest.
- In L. v. Matheson (1981), the Court upheld a law requiring parental notification when the patient is a minor living with parents.
- In City of Akron v. Akron Center for Reproductive Health (1983), the justices invalidated a wide range of limitations on abortion, such as a waiting period, parental consent without judicial bypass, and a ban on abortions outside of hospitals after the first trimester.
- Thornburgh v. American College of Obstetricians and Gynecologists (1986) struck down a law that required informed consent to include information about fetal development and alternatives to abortion.
- In Webster v. Reproductive Health Services (1989), Justice Rehnquist upheld rules requiring doctors to test for viability after 20 weeks and blocking state funding and state employee participation in abortion services.
- Rust v. Sullivan (1991) upheld a ban on certain federal funds being used for abortion referrals or counseling.
- Hill v. Colorado (2000) upheld a law limiting protest and leafletting close to an abortion clinic.
- Stenberg v. Carhart (2000) struck down Nebraska’s ban on the dilation and extraction abortion procedure.
- In Gonzales v. Carhart (2007), a slightly changed Court upheld a federal ban on the dilation and extraction procedure.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
One case in the period between Roe and Dobbs deserves special attention. Through the 1980s, abortion opponents demanded the appointment of Supreme Court justices who would overturn Roe. With the confirmation of Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, anti-abortion activists were confident they had the votes.
In 1988 and 1989, the Pennsylvania legislature adopted new abortion restrictions, including parental consent requirements, spousal notification, a waiting period, and an expanded informed consent process. Planned Parenthood of Southeastern Pennsylvania challenged the law, and many viewed the case as Roe’s last stand — an opportunity for the Court to do away with the constitutional right to abortion.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, however, the new members of the Court disappointed anti-abortion advocates. While the Court replaced Roe’s trimester-by-trimester doctrine with a weaker level of protection and upheld elements of the Pennsylvania law that did not unduly burden the right to abortion, the justices declined to overrule Roe. A plurality opinion authored by O’Connor, Kennedy, and Souter explained that, while Supreme Court precedents are not eternal, there must be a compelling reason to abandon stare decisis — the notion that precedents should be upheld. The Court decided there was no adequate justification for overturning Roe, especially since Americans had arranged their lives around an expectation of control over their reproductive health, including having access to abortion. Casey also acknowledged the strong equality concerns that justify abortion rights, arguing that women cannot participate fully in the social and economic life of the nation if they are forced to continue unwanted pregnancies.
Dobbs v. Jackson Women’s Health Organization (2022)
In 2018, the Mississippi legislature banned abortions after 15 weeks of gestation, except in cases of narrowly defined medical emergency or severe fetal abnormality. The law was a challenge to both Roe and Casey. Jackson Woman’s Health Organization, the sole abortion provider in the state, contested the ban.
Long before Dobbs was decided, signs pointed to the Supreme Court’s intention to rescind the constitutional right to abortion. First, in a separate case that first appeared on the Court’s shadow docket, the justices allowed a Texas abortion ban that contravened Roe and Casey to remain in force. Then, in the weeks before Dobbs came down, a draft decision overturning Roe and Casey leaked out of the Court in an unprecedented breach of Court protocol.
The final decision was little changed from the leaked draft. Writing for the five-justice majority (with Chief Justice Roberts concurring only in the judgment), Justice Samuel Alito argued that the right to privacy is not specifically guaranteed anywhere in the Constitution. When unenumerated liberty rights exist — the right to raise your child as you see fit, for example — those rights must be “deeply rooted in the Nation’s history and tradition.” Reviewing the history of abortion restrictions in the early United States, Alito concluded that the right to abortion is not.
The opinion ignited a firestorm of controversy. Predictably so: Dobbs is arguably the first case to formally rescind a fundamental constitutional right. The opinion also failed to explain how its logic would not also result in the overturning of Griswold’s right to contraception or a series of other cases that rely on the same logic as Roe. These include Lawrence v. Texas (2003), which invalidated laws criminalizing same-sex intimate sexual conduct, and Obergefell v. Hodges (2015), which recognized the right to marriage for same-sex couples.
Also, for many Americans, Alito’s insistence that rights be “deeply rooted” in U.S. history revealed a broad discounting of historically marginalized communities, including women, people of color, and gay Americans. The only rights “deeply rooted” in our history are the ones that served the white, heterosexual men who dominated government at the time of the founding. While Casey had begun to address the equality dimensions of abortion rights, Dobbs moved in precisely the opposite direction, suggesting that non-majority groups must overcome special hurdles to have their rights recognized.
Abortion rights will now be defined on a state-by-state basis. Several state courts have ruled that their constitutions guarantee the right to abortion, whether because of explicit references to “privacy” or by relying on language that broadly protects personal autonomy. The Kansas Supreme Court, for example, has ruled that the constitution’s guarantee of “equal and inalienable natural rights” protects personal decision-making, self-determination, and bodily integrity. Other states have adopted an approach consistent with Roe, in which the right to privacy, including reproductive freedom, has been recognized as implied in the state constitution.
Following the Dobbs case, anti-abortion activists have proposed state constitutional amendments stating that nothing in the constitution protects abortion rights. In some cases, these measures seek to overrule their state courts’ interpretations of the constitution. In others, there has been no court decision regarding the constitutional right to abortion. Other states have, in contrast, moved to expand or cement abortion rights, including through constitutional amendments.
Dobbs also leaves a long list of unanswered practical questions. Can states ban women from traveling to obtain an abortion? How will they police the importation and use of abortion drugs? How will state courts handle the slew of “trigger laws” — state anti-abortion statutes designed to come into effect upon the overturning of Roe? Just as Roe set off years of legal uncertainty over the precise boundaries of abortion rights, Dobbs has launched a long period of uncertainty over states’ power to restrict abortion in the absence of those rights.
The current Court
- Chief Justice John Roberts, during his time as a lawyer for the George W. Bush administration, wrote that Roe has “no support in the text, structure, or history of the Constitution.” In his Dobbs concurrence, however, Roberts favored preserving a more limited constitutional right to abortion, without specifying how far it would extend. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.”
- Justice Clarence Thomas, who was in the Dobbs majority, has written that Roe was “grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman’s right to abort her unborn child — finds no support in the text of the Fourteenth Amendment.”
- Justice Samuel Alito complained as a young lawyer in the Reagan administration about “the courts’ refusal to allow breathing room for reasonable state regulation” of abortion. In a job application, he wrote, “I personally believe very strongly that the Constitution does not protect a right to an abortion.” As the authority of the majority opinion in Dobbs, he wrote that “Roe was . . . egregiously wrong and on a collision course with the Constitution from the day it was decided.”
- Justice Neil Gorsuch, who was in the Dobbs majority, has said and written less on abortion than many other justices, but during his confirmation hearing, he noted that Roe was “a precedent of the U.S. Supreme Court” and added, “once a case is settled, that adds to the determinacy of the law.”
- Justice Amy Coney Barrett added her name to a 2006 ad calling for Roe to be overturned and suggested that the possibility of adoption might obviate the need for abortion rights.
- Justice Brett Kavanaugh, in 2017, proclaimed his admiration of former justice Rehnquist’s Roe dissent, noting that his views about unenumerated rights were “successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
- Justice Ketanji Brown Jackson repeatedly described Roe as “settled law” in her confirmation hearings. In the same hearings, when asked when human life begins, she replied simply, “I don’t know.”
- Justice Sonia Sotomayor has focused much of her writing about abortion on the cost that bans impose on those who are economically disadvantaged. Objecting to the Court’s decision to allow a Texas abortion ban to stand, Sotomayor wrote, “Those without the ability to make this journey [to a state allowing abortion], whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help.” The Dobbs dissent, authored by Justice Breyer and joined by Justices Sotomayor and Kagan, continued that theme of disempowerment, lamenting the end of an era in which “respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”
- Justice Elena Kagan has a significant and slightly complicated record on abortion. As a lawyer in the Clinton administration, she wrote a memo recommending that the president sign a ban on “partial birth abortion” if it contained an exception in cases of serious risk to health. As a justice, however, Kagan has voted consistently against restrictions on abortion. She called a recent Texas abortion ban “patently unconstitutional” and dissented forcefully in Dobbs.
Notable past justices
- Justice Stephen Breyer: “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child . . . Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”
- Chief Justice Warren Burger: “The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action ‘encouraging childbirth except in the most urgent circumstances’ is ‘rationally related to the legitimate governmental objective of protecting potential life.’”
- Justice Ruth Bader Ginsburg: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”
- Justice Sandra Day O’Connor: “The Roe framework . . . is clearly on a collision course with itself.”
- Chief Justice William Rehnquist: “We do not see why the state’s interest in protecting human life should come into existence only at the point of viability.”
- Justice Antonin Scalia: “We should get out of this area [abortion law], where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
- Justice Byron White: “The Court apparently values the convenience of the pregnant mother more than the continued existence of the life or potential life that she carries.”
- Justice William J. Brennan Jr.: “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted government intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.”
- Justice Anthony Kennedy: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”
- Justice David Souter: “I have not got any agenda on what should be done with Roe v. Wade, if that case is brought before me.”