Cameron Miranda
Roe v. Wade was a landmark decision by the U.S. Supreme Court in 1973, which ruled that the Constitution protected the right to have an abortion before foetal viability. The decision invalidated a Texas law that prohibited abortions except when necessary to save the mother's life. The Supreme Court recognized that the right to decide whether to continue a pregnancy was protected by the liberty clause in the 14th Amendment, which affords privacy. However, Roe v. Wade was overturned in 2022, and this has resulted in abortion bans in several states, threatening the constitutional foundations for a range of liberty rights.
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What You'll Learn
State abortion bans
The Roe v. Wade, 410 U.S. 113 (1973) decision by the U.S. Supreme Court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. This placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion. The decision struck down many state abortion laws, and it sparked an ongoing abortion debate in the United States.
In response to Roe v. Wade, many states attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, spousal mutual consent laws, and laws requiring abortions to be performed in hospitals. Some states and territories never repealed their pre-Roe abortion bans.
In June 2022, the U.S. Supreme Court overturned Roe v. Wade, allowing states to ban abortion outright. As a result, 18 states banned or severely restricted abortion, with more states working to pass bans. Abortion bans have disproportionately harmed Black, Latino, Indigenous, and other communities of color, where systemic racism has historically blocked access to opportunity and healthcare.
- Gestational age limits: Some states, such as South Carolina and Georgia, have enacted "heartbeat laws," banning abortion after the detection of a fetal heartbeat, which typically occurs around six weeks into pregnancy.
- Method restrictions: Laws prohibiting specific methods of abortion care, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures.
- Reason-based prohibitions: Laws prohibiting abortion sought for particular reasons, such as the sex or race of the fetus.
- Trigger laws: Laws designed to automatically ban abortion in a state if Roe v. Wade was overturned or if a federal constitutional amendment prohibited abortion.
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Abortion access restrictions
The Roe v. Wade case of 1973 was a landmark decision by the US Supreme Court, ruling that the Constitution protected the right to have an abortion before foetal viability. The decision invalidated a Texas law that prohibited abortions except when necessary to save the mother's life. The Supreme Court recognised that the right to decide whether to continue a pregnancy was protected by the liberty clause in the 14th Amendment, which affords privacy.
However, despite the ruling, many states passed laws that made accessing abortions extremely difficult. For instance, laws were passed requiring parental consent for minors to obtain abortions, spousal mutual consent laws, and laws requiring abortions to be performed in hospitals rather than clinics. In 1976, the Hyde Amendment became law, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or threat to the mother's life.
The Supreme Court struck down some state restrictions, but upheld others, including funding restrictions. The Court also allowed states to restrict abortion as long as the burdens on access were not too severe. This led to a series of decisions that diluted Roe, with courts upholding restrictions that made abortion more difficult to access, particularly for vulnerable communities.
In 2021, the Supreme Court reviewed a lower court's decision to strike down a Mississippi state law banning most abortions after 15 weeks of pregnancy, which was plainly unconstitutional under Roe v. Wade. The conservative majority of justices in the Supreme Court were expected to overturn or reduce the scope of Roe, which they did in 2022, eliminating the federal constitutional right to abortion. This led to 18 states banning or severely restricting abortion, with more states working towards passing bans.
As a result, one in three women now live in states where abortion is not accessible, and the overturning of Roe threatens the constitutional foundations for a range of other liberty rights.
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The trimester framework
In Roe v. Wade, the Supreme Court ruled that the Constitution of the United States protected the right to have an abortion before fetal viability. The decision invalidated a Texas law that prohibited abortions except when necessary to save the mother's life. The Supreme Court recognised that the right to decide whether to continue a pregnancy falls within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy.
In 1989, the Supreme Court modified the Roe trimester framework in Webster v. Reproductive Health Services. The Court upheld several abortion restrictions, but Chief Justice Rehnquist declined to explicitly overrule Roe, stating that "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution."
Roe v. Wade was overturned in 2022, eliminating the federal constitutional right to abortion in the United States. In the aftermath, 18 states banned or severely restricted abortion, disproportionately impacting communities of colour and other marginalised groups.
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State power to regulate
In Roe v. Wade (1973), the U.S. Supreme Court ruled that the Constitution of the United States protected the right to have an abortion prior to the point of fetal viability. This decision invalidated many state abortion laws and sparked a national debate about the legality and morality of abortion.
The Roe decision imposed a federally mandated uniform framework for state legislation on abortion. It established a trimester framework, with the end of the first trimester (12 weeks) as the threshold for state interest. States were prohibited from banning abortion in the first trimester but could impose restrictions or outright bans later in the pregnancy. This decision placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and religion, requiring the strictest level of constitutional review, known as "strict scrutiny".
However, despite Roe v. Wade, many states passed laws that made accessing abortion extremely difficult. For example, laws requiring parental consent for minors to obtain abortions, spousal mutual consent laws, and laws requiring abortions to be performed in hospitals rather than clinics. In 1976, the Hyde Amendment became law, barring the federal government from using Medicaid to fund abortions except in cases of rape, incest, or a threat to the mother's life.
In 1989, the Supreme Court upheld several abortion restrictions in Webster v. Reproductive Health Services, modifying the Roe trimester framework. From 1992 onwards, the Court evaluated abortion regulations under an "undue burden" standard, permitting states to restrict abortion as long as the burdens on access were not too severe. This led to a range of restrictions that made abortion more difficult to access, particularly for vulnerable communities.
On June 24, 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, ruling that abortion was not addressed in the Constitution and was within each state's regulatory power. As a result, 18 states banned or severely restricted abortion, inflicting harm on communities of color, low-income communities, and others with limited resources.
While Roe v. Wade has been overturned, some states have passed laws to maintain the legality of abortion. As of 2022, ten states have high courts that recognize their state constitutions protect abortion rights and access independently from, or more strongly than, the U.S. Constitution. These state constitutions and courts offer stronger legal grounds for protecting abortion rights and shielding access in highly restrictive parts of the country.
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Constitutional right to privacy
In Roe v. Wade, the US Supreme Court ruled that the Constitution protected the right to have an abortion prior to the point of fetal viability. The decision struck down many state abortion laws and sparked a national debate about the legality of abortion.
The case was brought by Norma McCorvey (under the legal pseudonym "Jane Roe"), who, in 1969, became pregnant with her third child. She wanted an abortion but lived in Texas, where abortion was only legal when necessary to save the mother's life. In its 1973 decision, the Supreme Court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy.
The Court held that restrictions on the right to abortion were subject to the most stringent level of constitutional review, often called "strict scrutiny". This legal standard required that infringements on the right be narrowly tailored to serve a compelling government interest. The Court required the state to justify any interference with the right to access abortion by showing that it had a "compelling interest", and held that no interest was compelling enough to ban abortion before viability.
The Roe decision made state abortion bans unconstitutional and abortion care legal, more accessible, and safer throughout the country. However, abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to reverse the decision. In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or spousal notification, laws requiring abortions to be performed in hospitals, and laws banning certain procedures.
The Supreme Court's ruling in Roe v. Wade decriminalized abortion nationwide and placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion. The case set a precedent for numerous privacy-related cases over the past six decades, including Planned Parenthood v. Casey (1992). The overturning of Roe v. Wade in 2022 threatens the constitutional foundations for a range of other liberty rights.
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Frequently asked questions
Roe v. Wade, 410 U.S. 113 1973 was a landmark decision by the U.S. Supreme Court, ruling that the Constitution protected the right to have an abortion prior to the point of fetal viability.
Roe v. Wade struck down many state abortion laws and sparked a national debate about the legality of abortion. It also led to lawsuits against abortion restrictions, with some reaching the Supreme Court.
In 2022, the Supreme Court overturned Roe v. Wade in the case of Dobbs v. Jackson Women's Health Organization, eliminating the federal constitutional right to abortion.
