Abortion, Roe v. Wade, and Pre-Dobbs Doctrine

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1973, the Court concluded in Roe v. Wade that the U.S. Constitution protects a woman’s decision to terminate her pregnancy.1 The Court’s decision dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in numerous states, the District of Columbia, and the territories. In reaching its decision, the Court conducted a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on the procedure were of relatively recent vintage and thus lacked the historical foundation that might have preserved them from constitutional review.2

The Roe Court ruled that states may not categorically proscribe abortions by making their performance a crime.3 The constitutional basis for the decision rested upon the conclusion that the right of privacy embraces a woman’s decision to carry a pregnancy to term.4 With regard to the scope of that privacy right, the Court stated that it includes “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’” and bears some extension to activities related to marriage, procreation, contraception, family relationships, child rearing, and education.5 Such a right, the Court concluded, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 6

With respect to protecting the right to an abortion against state interference, the Court held that because the right of privacy is a fundamental right, only a “compelling state interest” could justify its limitation by a state.7 Thus, while it recognized the legitimacy of a state interest in protecting maternal health and preserving a fetus’s potential life, as well as the existence of a rational connection between these two interests and a state’s abortion restrictions, the Court held these interests insufficient to justify an absolute ban on abortions.8

Instead, the Court emphasized the durational nature of pregnancy and found the state’s interests in maternal health and fetal life to be sufficiently compelling at only certain stages of pregnancy to permit the regulation or prohibition of the procedure. Finding that an abortion is no more dangerous to maternal health than childbirth in the first trimester of pregnancy, the Court concluded that the compelling point for regulating abortion to further a state’s interest in maternal health was at approximately the end of the first trimester.9 Until that point, the abortion decision and its effectuation was to be left exclusively to the medical judgment of the pregnant woman’s doctor in consultation with the patient.10 After the end of the first trimester, however, the state could promote its interest in maternal health by regulating the abortion procedure in ways reasonably related to maternal health.11

The compelling point with respect to the state’s other interest in potential life was at viability, which the Court described as the point at which the fetus is “potentially able to live outside the mother’s womb.” 12 Following viability, the state’s interest permitted it to regulate and even proscribe an abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the woman.

In a companion case, Doe v. Bolton, the Court extended Roe by warning that just as states may not restrict abortion by making its performance a crime, they may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers.13 In Doe, the Court struck down Georgia’s requirements that abortions be performed in licensed hospitals; that abortions be approved beforehand by a hospital committee; and that two physicians concur in the abortion decision.14

Following Roe, as states adopted new abortion regulations, the Court settled questions involving a variety of related topics, including informed consent for the woman seeking an abortion, mandatory waiting periods before the procedure could be performed, and spousal consent requirements.15 In 1983, in City of Akron v. Akron Center for Reproductive Health, the Court expressly reaffirmed Roe before invalidating several provisions of an Akron, Ohio abortion ordinance.16 Acknowledging the Court’s role in defining the limits of a state’s authority to regulate abortion, the Court in City of Akron maintained that the doctrine of stare decisis “while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.” 17

In 1986, the Court again reaffirmed Roe in Thornburgh v. American College of Obstetricians and Gynecologists.18 Reviewing several provisions of Pennyslvania’s Abortion Control Act, the Court observed that the constitutional principles that guided its decisions in Roe and Doe v. Bolton “still provide the compelling reason for recognizing the constitutional dimensions of a woman’s right to decide whether to end her pregnancy.” 19

In 1989, however, a plurality of the Court questioned the continued use of Roe's trimester framework to evaluate abortion regulations. In Webster v. Reproductive Health Services, the Court upheld two Missouri abortion regulations: a restriction on the use of public employees and facilities for the performance of abortions; and a requirement that a physician ascertain a fetus’s viability before performing an abortion, if the physician had reason to believe that a woman was twenty or more weeks pregnant.20 Although the Court did not overrule Roe in Webster, a plurality of Justices indicated that it was willing to apply a less stringent standard of review to abortion regulations.21 In separate concurring opinions, two Justices also criticized Roe and the trimester framework.22

In 1992, a plurality of the Court rejected Roe's trimester framework in a case involving Pennsylvania’s Abortion Control Act.23 In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality explained that “in its formulation [the framework] misconceives the pregnant woman’s interest . . . and in practice it undervalues the State’s interest in potential life[.]” 24 In its place, the plurality adopted a new “undue burden” standard, maintaining that this standard recognized the need to reconcile the government’s interest in potential life with a woman’s right to decide to terminate her pregnancy.25 The plurality indicated that an undue burden exists if the purpose or effect of an abortion regulation is “to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” 26

In adopting the new undue burden standard, Casey nonetheless reaffirmed the essential holding of Roe, which the plurality described as having three parts.27 First, a woman has a right to choose to have an abortion prior to viability without undue interference from the state.28 Second, the state has a right to restrict abortions after viability so long as the regulation provides an exception for pregnancies that endanger a woman’s life or health.29 Third, the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.30

Following Casey, the Court applied the undue burden standard in two cases involving the so-called “partial-birth” abortion procedure.31 In Stenberg v. Carhart, the Court concluded that a Nebraska statute that prohibited the performance of partial-birth abortions was unconstitutional because it failed to include an exception to protect the health of the mother and because the language defining the prohibited procedure was too vague. In Gonzales v. Carhart, the Court applied the undue burden standard to the federal Partial-Birth Abortion Ban Act of 2003.32 Distinguishing the act from the Nebraska statute at issue in Stenberg, the Court concluded that the federal law did not impose an undue burden on a woman’s ability to obtain an abortion and was not unconstitutionally vague.33

In Gonzales, the Court also concluded that the federal law was not unconstitutionally vague because it provides doctors with a reasonable opportunity to know what conduct is prohibited.34 Unlike the Nebraska statute, which prohibited the delivery of a “substantial portion” of the fetus, the federal law includes “anatomical landmarks” that identify when an abortion procedure will be subject to the act’s prohibitions.35 The Court observed: “[I]f an abortion procedure does not involve the delivery of a living fetus to one of these ‘anatomical landmarks'—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.” 36

In 2016, the Court provided further guidance on applying the undue burden standard in Whole Woman’s Health v. Hellerstedt.37 In Whole Woman’s Health, the Court invalidated two Texas requirements that applied to abortion providers and physicians who perform the procedure: a requirement that physicians who perform or induce abortions have admitting privileges at a hospital within thirty miles from the location where the abortion was performed or induced; and a requirement that abortion facilities satisfy the same standards as ambulatory surgical centers.38 In applying the undue burden standard, the Court in Whole Woman’s Health emphasized that reviewing courts must consider “the burdens a law imposes on abortion access together with the benefits those laws confer.” 39 The Court also indicated that considerable weight should be given to the evidence and arguments presented in judicial proceedings when evaluating the constitutionality of abortion regulations.40

In 2020, the Court invalidated a Louisiana law that required physicians who performed abortions to have admitting privileges at a hospital within thirty miles of the location where the procedure was performed. In June Medical Services v. Russo, a majority of the Court concluded that the law imposed an undue burden on a woman’s ability to obtain an abortion.41 Justice Stephen Breyer authored an opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that relied heavily on Whole Woman’s Health.42 Justice Breyer maintained that the laws being reviewed in June Medical Services and Whole Woman’s Health were “nearly identical,” and that the Louisiana law “must consequently reach a similar conclusion.” 43 In a separate opinion, Chief Justice John Roberts concurred in the judgment, emphasizing that the legal doctrine of stare decisis required June Medical Services to be decided like Whole Woman’s Health.44

Applying the undue burden standard in June Medical Services, Justice Breyer reiterated that the standard requires balancing an abortion regulation’s benefits against any burdens it imposes.45 The plurality maintained that the district court faithfully engaged in this balancing, concluding that the closure of abortion facilities and a reduction in the number of physicians performing abortions outweighed the fact that the admitting privileges requirement provided no significant health benefit.46

Concurring in the judgment, Chief Justice Roberts agreed that the Louisiana law and the Texas law at issue in Whole Woman’s Health were nearly identical.47 Although he dissented in Whole Woman’s Health and indicated in his concurrence that the Texas case was wrongly decided, he nevertheless maintained that stare decisis required the invalidation of the Louisiana law.48 Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the undue burden standard is now applied as a result of Whole Woman’s Health.49 Discussing the balancing of an abortion regulation’s benefits and burdens, the Chief Justice contended that nothing in Casey suggested that courts should engage in this kind of weighing of factors.50 According to the Chief Justice, Casey focused on the existence of a substantial obstacle as sufficient to invalidate an abortion regulation and did not “call for consideration of a regulation’s benefits[.]” 51 Reviewing the burdens imposed by the Louisiana law, such as fewer abortion providers and facility closures, the Chief Justice agreed with the plurality that “the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law.” 52 Nevertheless, the Chief Justice further observed that “the discussion of benefits in Whole Woman’s Health was not necessary to its holding.” 53

1: 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. June 24, 2022).
2: Id. at 129–47.
3: Id. at 164–65.
4: Id. at 153.
5: Id. at 152–53.
6: Id. at 153.
7: Id. at 155.
8: Id. at 164–65.
9: Id. at 163.
10: Id.
11: Id.
12: Id. at 160. See also id. (identifying viability as “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks” ).
13: 410 U.S. 179, 201 (1973).
14: Id. at 193–200.
15: See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 450 (1983) (invalidating Akron ordinance requiring 24-hour waiting period between signing of consent form and performance of abortion because city “failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period” ), overruled in part by Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992); Bellotti v. Baird, 443 U.S. 622 (1979) (invalidating parental consent requirement for minors seeking abortions); Colautti v. Franklin, 439 U.S. 379 (1979) (finding Pennsylvania law imposing standard of care on abortion providers upon viability determination unconstitutionally vague); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (upholding Missouri informed consent requirement, but invalidating spousal consent requirement); Singleton v. Wulff, 428 U.S. 106 (1976) (finding standing for physicians to bring suit on behalf of patients seeking Medicaid-funded abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state law prohibiting attempted abortion by “any person” was not unconstitutional as applied to nonphysician).
16: City of Akron, 462 U.S. at 419–20.
17: Id.
18: Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986), overruled in part by Casey, 505 U.S. 833.
19: Id. at 759.
20: 492 U.S. 490 (1989).
21: Id. at 516–22.
22: Id. at 522 (O’Connor, J., concurring in part and concurring in the judgment), 532 (Scalia, J., concurring in part and concurring in the judgment).
23: Casey, 505 U.S. 833, overruled by Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. June 24, 2022).
24: Id. at 873.
25: Id. at 876.
26: Id. at 878.
27: Id. at 846.
28: Id.
29: Id.
30: Id.
31: Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007).
32: Gonzales, 550 U.S. at 150.
33: Id. at 168.
34: Id. at 149.
35: See id. at 148; see also Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999); 18 U.S.C. § 1531(b)(1)(A).
36: Gonzales, 550 U.S. at 148.
37: No. 15-274, slip op. at 21 (U.S. June 27, 2016).
38: Id. at 1–2.
39: Id. at 19–20.
40: Id. at 20.
41: No. 18-1323, slip op. at 3 (U.S. June 29, 2020).
42: Id. at 1.
43: Id. at 40.
44: Id. at 2 (Roberts, C.J., concurring in the judgment).
45: Id. at 16–17.
46: Id. at 17–38.
47: Id. at 2 (Roberts, C.J., concurring in the judgment).
48: Id. at 2–4.
49: Id. at 6.
50: Id.
51: Id. at 11.
52: Id.
53: Id. at 12 n.3.