Roe v. Wade is the Supreme Court case that held that the Constitution protected the right to an abortion prior to the viability of the fetus. In 2022, the Supreme Court reversed Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey (see entries on Dobbs v. Jackson (2022) and abortion for further details).
Full text of Roe v. Wade (1973)
The case involved a Texas statute that prohibited abortion except when necessary to save the life of the pregnant person. The Supreme Court, in a decision written by Justice Blackmun, originally recognized a privacy interest in abortions. In doing so, the Court had applied the right to privacy established in Griswold v Connecticut (1965). At stake in this matter was the fundamental right of an individual to decide whether to terminate their pregnancy. The underlying values of this right included decisional autonomy and physical consequences (i.e., the interest in bodily integrity).
The Court had applied the strict scrutiny test because there was a fundamental right involved.
The Court had divided the pregnancy period into three trimesters. Originally, the Court asserted that during the first trimester, the decision to terminate the pregnancy was solely at the discretion of the individual. After the first trimester, the state could “regulate procedure.” Again, originally during the second trimester, the state could regulate (but not outlaw) abortions in the interests of the pregnant individual's health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the pregnant person.
Justice White and Justice Rehnquist’s separate dissents emphasized that the people and the legislatures, not the Court, should weigh this matter. Justice White argued, “Its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court….” Justice Rehnquist believed that the majority had misconstrued “privacy” and argued that “[t]he Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under the standard….”
Abortion in the Supreme Court Post-Roe:
The decision in Roe faced a great deal of controversy, and 46 states needed to change their abortion laws as a result of the holding. Almost 30 years later, the Supreme Court revisited the issue of abortion in Casey v. Planned Parenthood (1992). The Casey court had originally kept three findings made in Roe:
- Individuals have the right to abort pre-viability without undue interference from the state
- The state may restrict abortion post-viability
- The state has a legitimate interest in protecting pregnant individual's health and life of the fetus
In Gonzales v. Carhart (2007), the Court had upheld a federal statute that banned partial-birth abortions. This was the first time since Roe that the Supreme Court upheld a ban on a type of abortion.
In Whole Women's Health v. Hellerstedt, the Court had found that "[t]wo provisions in a Texas law – requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center – place a substantial obstacle in the path of individuals seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution." For more on the impact of Hellerstedt, see this Harvard Law Review note.
In Dobbs v. Jackson, the Court reversed the Roe v. Wade and Casey decisions. The Dobbs court held that the Constitution does not confer a fundamental right to abortion. Consequentially, rational-basis review is the new standard in reviewing state regulations of abortions. Essentially, states are now able to pass regulations for abortions “for legitimate reasons” and if presented with a constitutional challenge, the laws are entitled to a “strong presumption of validity.”
[Last updated in June of 2022 by the Wex Definitions Team]