Abortion Rights: Ash Heap of History or Surviving the Smoke

Few constitutional questions have been declared settled as often, or as prematurely, as the right to terminate a pregnancy. For more than four decades after Roe v. Wade, 410 U.S. 113 (1973), each side read the same line of decisions as proof that its position was the inevitable one — either a fundamental liberty too deeply rooted to dislodge, or a judicial improvisation destined for the ash heap of history. The cases themselves told a more contingent story. The doctrine bent, narrowed, and was rewritten more than once before it was discarded, and the path it traveled illustrates how a constitutional rule can appear durable right up to the moment it is not.

What Roe actually held, and what Casey kept

The popular shorthand collapses a complicated holding. Roe located the abortion right in the zone of privacy protected by the Fourteenth Amendment’s Due Process Clause and built a trimester framework around it: near-exclusive choice early in pregnancy, a state interest in maternal health that grows in the second trimester, and a state interest in fetal life that becomes controlling at viability. State restrictions on a fundamental right ordinarily drew strict scrutiny.

Nineteen years later, a fractured Court declined to overrule Roe but rebuilt its analytics. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), retained what its joint opinion called the “essential holding” — a protected liberty interest before viability — while jettisoning the trimester structure and strict scrutiny. In their place came the undue-burden test: a regulation is invalid if its purpose or effect is to place a substantial obstacle in the path of a person seeking a pre-viability abortion. Casey presented this as a stabilizing compromise, leaning heavily on stare decisis and the reliance interests that had grown up around the right.

The undue-burden test as a moving target

The trouble with “substantial obstacle” is that it asks judges to weigh burdens against benefits without a fixed scale. For two decades lower courts split over how much deference to give a legislature’s stated health rationale, and over whether a restriction had to be invalid in every conceivable application before it could be struck down. The standard was workable enough to uphold parental-involvement and informed-consent rules, and pliable enough that states testing its limits could rarely predict the outcome in advance.

That ambiguity narrowed in 2016. In Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016), the Court struck two provisions of Texas House Bill 2 — a requirement that abortion providers hold admitting privileges at a hospital within thirty miles, and a mandate that clinics meet ambulatory-surgical-center standards. The majority clarified that the undue-burden inquiry requires courts to actually weigh a law’s asserted medical benefits against the burdens it imposes, rather than accept a health justification at face value. On the record, the benefits were negligible and the burdens — clinic closures, longer travel, reduced access for rural and low-income patients — were real.

The substantive-due-process vulnerability

The deeper fault line was never really about clinic corridors. It ran through substantive due process itself — the proposition that the word “liberty” in the Fourteenth Amendment protects certain unenumerated rights. Critics argued for years that an interest the Constitution does not name, and that was not deeply rooted in the nation’s history and traditions, could not anchor a binding rule. Defenders answered that the same reasoning would unsettle a line of decisions on contraception, marriage, and intimate association that share Roe‘s methodological foundation. Each side understood that whatever toppled the abortion right would strain everything resting on the same footing.

From doctrine to discard: Dobbs

The compromise did not hold. In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the Court upheld a Mississippi ban at fifteen weeks and, by a five-Justice majority, overruled both Roe and Casey. The Constitution, the majority concluded, makes no reference to abortion and protects no such right, including through the Due Process Clause on which the earlier cases relied. The undue-burden test — clarified in Hellerstedt only six years earlier — ceased to be law. The decision returned the question to elected branches and, with it, to the states.

That much is now settled doctrine. What it produced is not a single national rule but a patchwork. Trigger laws drafted in anticipation of the decision took effect within weeks in roughly a dozen states; others moved in the opposite direction. Voters, too, became a forum the federal courts had largely displaced — ballot measures protecting access prevailed in states across the political spectrum, while others failed. The constitutional center of gravity shifted from a single reporter volume to fifty legislatures, fifty constitutions, and the courts that read them.

Reading the trajectory honestly

The lesson the cases teach is about how constitutional rights are held, not whether any particular one deserves to be. A right reaffirmed on the strength of reliance and precedent looked stable for a generation, then proved no more permanent than the votes that sustained it. The same observation cuts in more than one direction: a question removed from the federal courts has not disappeared, only migrated, and the doctrines that travel with substantive due process remain in play wherever that methodology is contested.

For practitioners, the operative inquiries now sit in state law — statutory bans and their exceptions, state-constitutional liberty and equal-protection provisions, and the initiative processes that can entrench or unwind either. The federal framework that organized this area for nearly fifty years is instructive history; it is no longer the controlling rule. Whether the current arrangement proves any more lasting than the one it replaced is a question only the next round of decisions, and elections, can answer. Those tracking how the post-Dobbs landscape develops can follow the relevant rulings through the case tracker, alongside related commentary on how courts handle unenumerated rights.

This publication offers commentary and analysis on legal developments and does not provide legal advice.