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Abortion is the voluntary termination of a pregnancy. In 2022, nearly 50 years after Roe v. Wade changed the legal status of abortion by striking down a Texas law that criminalized abortion except as a means of saving the life of the pregnant person, the United States Supreme Court in Dobbs v. Jackson Women's Health Organization held that abortion is not a fundamental right under the US Constitution, clearing the way for states to pass laws restricting abortions that would have to withstand only rational-basis review when challenged in courts.  

From Roe to Dobbs:

The Roe v. Wade case pitted individual privacy rights against States’ interest in regulating the life of the fetus. Interpreting the Due Process Clause of the Fourteenth Amendment and the Right to Privacy maintained by the Ninth Amendment, the Court ruled that an individual's personal autonomy and reproductive rights extend to their decision to terminate their pregnancy. The Court had determined that States’ interest in the fetus became relevant only at “viability,” the point at which the fetus could survive independently from the pregnant person. Government bans on abortion became limited to post-viability interventions, while at no point could the State privilege the life of the fetus over that of the pregnant person. Pre-viability regulation of abortion by States was limited by a an individual's right to choose to end their pregnancy. Justice Blackmun’s “trimester formula” anchored the concept of viability and established a timetable according to which States could legally regulate abortion. Roe never permitted abortion in every instance but balanced States’ interest in the life of the fetus with individual’s privacy rights.

Doe v. Bolton, 410 U.S. 179, decided by the Court on the same day as Roe, established the concept of health within the purview of physicians. The judicial question addressed by the Court concerned a Georgia law that proscribed medical abortion except as a measure performed by a licensed physician using their best judgment and aiming to save the pregnant person's life. The Court ruled that physicians maintain a privileged knowledge of life and health that qualifies them to judge the risks posed by abortion procedures. Doe signaled the Court’s best effort to diminish the political nature of abortion by insisting that scientific knowledge and practical experience, not legislative acts, best served individuals, their pregnancies, and States’ interests in the abortion debate. Subsequently, Doe asserted protection of privacy to the confidential patient-physician relationship. In 1976, physicians’ expertise was again upheld in the case of Planned Parenthood of Central Missouri, v. Danforth 428 U.S. 52, which determined “viability” to be a concept properly defined by the medical establishment rather than state legislatures.

In 1989, the Supreme Court again addressed the question of the medical establishment’s role in abortion. Webster v. Reproductive Health Services, 420 U.S. 490 (1989) specifically tackled the constitutionality of a Missouri state law that denied public funds, practitioners, and facilities for use in abortion. The majority decision, which was internally contentious, upheld abortion as a right possessed by individuals, yet also upheld the actions of the state in denying public resources to support abortion. The majority opinion found no law compelling states to allocate moneys for counseling individuals about or for performing abortions. It deemed the statute’s preamble, which defined when life begins, wholly constitutional. By upholding a state’s right to design legislative measures limiting access to abortion services, Webster represented a significant deviation from the Court’s approach in Roe.

Since Roe, many states drafted abortion laws that stipulated conditions under which an individual could get an abortion. State abortion laws designed to narrow the practices permissible under Roe’s broad legal mantle increased the heat on an already sizzling debate. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), for which there was no majority opinion, brought the conflict over Roe into high relief. The question raised by Casey was whether five separate conditions placed upon the right to abortion by Pennsylvania state law are constitutional. In the plurality opinion written by Justices O’Connor, Kennedy, and Souter, the Court ruled three of five stipulations – parental consent, informed consent and a 24-hour waiting period – constitutionally valid, because they did not unduly burden someone seeking an abortion. Spousal notification was deemed an “undue burden” and was therefore rejected as unconstitutional. These decisions were in keeping with a new legal standard – undue burden – designed by Justice O’Connor in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) as a means of upholding Roe’s principal argument while simultaneously narrowing its scope without creating hardship for those seeking abortions. Casey, which overturned the trimester model conferred by Roe, brokered the relationship between States’ interests and an individual's right to privacy via the concept of viability. As with Roe, States could entirely ban abortion at the point where a fetus achieved viability. Casey declared medical science, particularly the language and information used by doctors and hospitals in elaborating abortion procedures for patients, subject to State regulations and mandates.

Although Casey proved a significant victory for anti-abortion groups, many states continued passing statutes that whittled away at Roe’s chief entitlement. In Stenberg v. Carhart, 530 U. S. 914 (2000), the Court addressed a Nebraska law that criminalized performance of a class of procedures collectively known as “partial birth abortion.” The Court ruled the statute, which excepted no circumstances – not even preserving the health of the pregnant person – a violation of the Due Process Clause of the Fourteenth Amendment of the Constitution.

The debate over so-called partial birth abortion merely shifted to the legislative branch when Congress passed the Partial-Birth Abortion Ban Act of 2003. Carhart, one of only a handful of physicians nationwide performing third trimester abortions, brought suit which claimed that the Act violated the personal liberty protections of the Fifth Amendment by banning partial birth abortions without exception.

In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court ruled that on its face the act banning abortions described in terms of their method – intact dilation and extraction – did not unduly burden individuals, create hardship or otherwise fail to protect their health by effectively preventing access to abortion, because such proceedings are never medically necessary.

In National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361 (2018), the Court ruled that a California Law requiring licensed clinics that offered “pregnancy-related services” to provide a “government-drafted script” about the availability of state-sponsored services, such as abortion as unconstitutional. The Court held that it was considered a content-based regulation of speech by compelling clinics to inform individuals about how they could obtain state-subsidized abortions.

In Dobbs v. Jackson (2022), the Court changed the legal status of abortion once again through reversing Roe v. Wade and Casey. In doing so, many of the previous cases that affirmed Roe in part or whole are also no longer valid case law. The Court asserted in Dobbs that there is no fundamental right to abortion guaranteed in the Constitution. Consequently, states are now able to pass legislation that regulates abortion so long as it is for legitimate reasons. Additionally, these laws are entitled to “a strong presumption of validity” if a constitutional challenge is brought forth. Essentially, abortion laws are now left up to state jurisdictions post Dobbs.  

[Last updated in June of 2022 by the Wex Definitions Team]