Would Roe v. Wade Be Decided the Same Way Today?

The Supreme Court held that the Constitution protects a woman's right to choose to have an abortion prior to viability, grounding this right in the liberty protected by the Due Process Clause of the Fourteenth Amendment. Justice Blackmun's majority opinion established a trimester framework balancing the woman's interest against the state's interests in maternal health and potential life. The decision invalidated abortion bans across the country.

Roe v. Wade was one of the most consequential and controversial decisions in Supreme Court history, reshaping American politics, judicial confirmation battles, and the culture wars for half a century. The decision was substantially modified by Planned Parenthood v. Casey (1992), which replaced the trimester framework with the 'undue burden' standard while affirming Roe's core holding that the Constitution protects a right to pre-viability abortion.

In June 2022, the Supreme Court overruled both Roe and Casey in Dobbs v. Jackson Women's Health Organization, holding that the Constitution does not confer a right to abortion. Justice Alito's majority opinion concluded that the right to abortion is not 'deeply rooted in this Nation's history and tradition' and therefore does not qualify as a protected liberty under the Due Process Clause. The decision returned the regulation of abortion entirely to the states and the political process.

The aftermath of Dobbs has produced a highly fragmented legal landscape. Some states have enacted near-total abortion bans, while others have moved to enshrine abortion access in state constitutions. Ballot initiatives protecting abortion rights have succeeded even in traditionally conservative states, suggesting that the political dynamics of abortion may be more complex than the simple red-state/blue-state divide suggests. The interaction between state bans, interstate travel for abortion services, and federal regulatory authority remains an active area of litigation.

Roe v. Wade did not survive modern reconsideration—it was overruled by the Supreme Court in Dobbs v. Jackson Women's Health Organization in 2022. The Dobbs majority rejected both the specific holding and the constitutional reasoning of Roe, concluding that the right to abortion lacks the historical pedigree required for recognition as a fundamental right under the Due Process Clause.

The overruling of Roe reflected decades of doctrinal and political developments. The conservative legal movement had long targeted Roe as the paradigmatic example of illegitimate judicial lawmaking, arguing that the Court had invented a constitutional right with no textual or historical basis. The appointment of three justices by President Trump created the supermajority necessary to overrule the precedent, despite the Court's prior reaffirmation of the core holding in Casey.

The doctrinal basis for Dobbs rests on a particular approach to substantive due process that requires rights to be deeply rooted in history and tradition. Under this framework, the fact that abortion was widely criminalized at the time of the Fourteenth Amendment's adoption in 1868 was dispositive. Critics have noted that this historical methodology, if applied consistently, could threaten other rights recognized under substantive due process, including contraception access and marriage equality, though the Dobbs majority expressly disclaimed any such intention.

The future of abortion jurisprudence remains uncertain. State constitutional challenges to abortion bans are proceeding in numerous jurisdictions, and there is ongoing debate about whether federal legislation could either protect or restrict abortion access nationwide. The question of whether Dobbs itself might eventually be reconsidered—as Roe reconsidered the pre-1973 status quo—remains a live political and legal question, though the current composition of the Court makes such a reversal unlikely in the near term.

The scholarly debate about Roe has shifted dramatically since Dobbs. Before 2022, the central academic question was whether Roe was correctly decided as a matter of constitutional interpretation. Even some progressive scholars, including Ruth Bader Ginsburg before her appointment to the Court, criticized the breadth and reasoning of the decision while supporting the underlying right. John Hart Ely's famous critique that Roe was 'not constitutional law and gives almost no sense of an obligation to try to be' reflected widespread academic unease with the opinion's doctrinal foundations.

Post-Dobbs scholarship has increasingly focused on alternative constitutional bases for reproductive autonomy, including the Equal Protection Clause, the Thirteenth Amendment's prohibition on involuntary servitude, and the Ninth Amendment's protection of unenumerated rights. Scholars like Melissa Murray and Reva Siegel have developed equality-based arguments that do not depend on the substantive due process framework that Dobbs rejected. Others, including Jamal Greene, have questioned whether the historical-tradition test employed in Dobbs is methodologically coherent or simply a mechanism for constitutionalizing conservative policy preferences.

• Dobbs v. Jackson Women's Health Organization (2022)
• Planned Parenthood v. Casey (1992)
• Whole Woman's Health v. Hellerstedt (2016)
• June Medical Services v. Russo (2020)
• Gonzales v. Carhart (2007)