Roe v. Wade: Right to Privacy and Substantive Due Process

Roe v. Wade, 410 U.S. 113 (1973), arose when Norma McCorvey (using the pseudonym “Jane Roe”) challenged a Texas statute that criminalized abortion except to save the mother's life. She argued the law violated her constitutional right to privacy. The case was consolidated with Doe v. Bolton, a companion challenge to Georgia's abortion restrictions. The Supreme Court agreed to hear the cases during a period of intense national debate over abortion, and the resulting opinions fundamentally reshaped American constitutional law for nearly five decades.

Justice Harry Blackmun wrote for a 7-2 majority. The Court held that the right to privacy, rooted in the liberty protected by the Due Process Clause of the 14th Amendment, encompassed a woman's decision to terminate a pregnancy. Texas's near-total abortion ban was unconstitutional. Justices White and Rehnquist dissented, arguing there was no constitutional basis for the right the Court recognized.

The Court crafted a trimester framework to balance the woman's privacy interest against the state's interests in maternal health and protecting potential life. First trimester: the state could not regulate abortion — the decision was between the woman and her physician. Second trimester: the state could regulate abortion procedures to protect maternal health, but could not prohibit abortion. Third trimester (post-viability): once the fetus could survive outside the womb, the state's interest in potential life became compelling, and the state could ban abortion — but only with an exception for the life or health of the mother.

Roe rests on the doctrine of substantive due process — the principle that the Due Process Clause protects certain fundamental liberties from government interference regardless of whether they are explicitly listed in the Constitution. The Court had previously used this doctrine to protect the right to use contraception (Griswold v. Connecticut, 1965) and the right to marry across racial lines (Loving v. Virginia, 1967). In Roe, the Court extended privacy rights to abortion decisions, treating reproductive choice as a fundamental right triggering strict scrutiny of government restrictions.

Planned Parenthood v. Casey (1992) preserved Roe's core holding through a plurality opinion authored by Justices O'Connor, Kennedy, and Souter. But Casey replaced the trimester framework with the undue burden standard: a state regulation is unconstitutional if its purpose or effect is to place a substantial obstacle in the path of a woman seeking a pre-viability abortion. Casey upheld several Pennsylvania restrictions — including a 24-hour waiting period and informed consent requirements — while striking down a spousal notification requirement. The joint plurality opinion also contains the famous “mystery passage” declaring that “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court — in an opinion by Justice Alito joined by five justices — overruled both Roe and Casey. The majority held that the right to abortion is not deeply rooted in the nation's history and traditions and is not implicit in the concept of ordered liberty, and therefore is not a fundamental right protected by the 14th Amendment. The decision returned abortion regulation entirely to the states. Justices Breyer, Sotomayor, and Kagan dissented, arguing the majority opinion was a dangerous departure from stare decisis that jeopardized other privacy-based rights.

Even after Dobbs, Roe and Casey remain critical to studying constitutional law. They illustrate the methodology of substantive due process and how the Court identifies unenumerated fundamental rights. The debate over Roe's legitimacy illuminates the broader tension between originalism and living constitutionalism. Dobbs itself grapples extensively with Roe's reasoning. And the concurrences and dissents in Dobbs raise unresolved questions about whether other privacy-based rights — contraception, same-sex marriage, interracial marriage — remain protected under the Court's new framework.

Bar examiners test substantive due process through Roe, Casey, and Dobbs together. Understand the evolution: Roe's strict scrutiny and trimester framework → Casey's undue burden standard → Dobbs's rejection of a fundamental right. Know how the Court determines whether a right is “fundamental” for substantive due process purposes: the right must be deeply rooted in history and tradition and implicit in the concept of ordered liberty. For exams set before 2022, apply the undue burden standard; for current law, apply Dobbs (rational basis review for abortion regulations).