Updated November 14, 2023
In June 2022, the United States Supreme Court released its opinion in Dobbs v. Jackson Women's Health Organization. The Dobbs opinion, most of which was leaked in May, overturned Roe v. Wade, eliminating the constitutional right to abortion that had been established nearly 50 years earlier.
Roe prevented states from banning abortions before the point that a fetus could be "viable" outside of the uterus. Dobbs returns the issue of how to regulate abortion—and whether to allow it at all—to the states.
Now that Roe is overturned, legal access to abortion is likely to end for millions of Americans.
Here's what you need to know:
Roe v. Wade is one of a handful of landmark Supreme Court decisions. The case was decided in 1973 and has become shorthand for abortion access in the United States. But what was the case about? And what's happened in the decades since Roe was decided?
Roe was a challenge to a Texas statute that made it a crime to perform an abortion unless a woman's life was at stake. The case was brought by "Jane Roe," an unmarried woman who wanted to legally end her pregnancy. The Supreme Court sided with Roe and struck down the Texas law. The Court ruled that the United States Constitution provides a fundamental "right to privacy" that includes a woman's right to choose to have an abortion. But, the Court said, the right to an abortion isn't absolute. The Roe decision allowed states to limit the right after fetal viability, except when abortion would be necessary to preserve the life or health of the mother.
Almost immediately after Roe was decided, state and federal lawmakers started passing laws designed to test and chip away at Roe. In 1992, the Supreme Court revisited Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey.
With the Casey case, abortion opponents hoped that the Court would overturn Roe. Instead, the Justices affirmed that states could not ban abortions before fetal viability, but replaced Roe's "strict scrutiny" standard of review for abortion regulations with a more relaxed "undue burden" standard, paving the way for more restrictions on abortion access.
Examples of state abortion restrictions that were upheld after Casey include:
By 2022, even before Roe was overturned, six states had imposed so many restrictions on abortion that only one abortion provider was left in each state.
Dobbs v. Jackson Women's Health Organization is the U.S. Supreme Court decision that overturned Roe. The case was about a Mississippi law passed in 2018 that banned nearly all abortions after 15 weeks of pregnancy, significantly before fetal viability, which is around 23 weeks. The law was in direct conflict with Roe and Casey, which prevented states from banning pre-viability abortions.
All states typically have to follow Supreme Court decisions. And courts, even the Supreme Court, typically must stand by previous decisions (a legal principle called "stare decisis"). The idea behind stare decisis is that courts shouldn't revisit issues that have been decided, so that rulings are predictable, consistent, and reliable.
When Casey was decided in 1992, the Court emphasized the importance of stare decisis and said that overturning Roe would come at too great of a cost to people who had relied on the decision for two decades.
But three decades after Casey, the Supreme Court reversed course in Dobbs, saying that Roe had to be overruled because it was "egregiously wrong and deeply damaging."
So, what changed between Roe and Casey on the one hand and Dobbs on the other? Many say the makeup of the Supreme Court. While campaigning, eventual President Donald Trump vowed to appoint justices who would overrule Roe. And three of the five justices who reversed 50 years of settled law (called "precedent") on the issue of abortion were his appointees.
Before Dobbs, pre-viability abortions were legal in all 50 states. As of November 2023, according to the New York Times, around 21 states have banned or restricted abortion rights, while other states are expanding access to abortions. Abortion law is still in flux in about a dozen or so states while courts weigh in on old and new bans and restrictions.
Post-Dobbs, voters have supported abortion rights in seven out of seven state ballot measures they've considered. In November 2022, voters in California, Michigan, and Vermont enshrined abortion rights in their constitutions. Ohio voters did the same in November 2023. And voters in Kansas, Kentucky, and Montana rejected anti-abortion ballot measures in 2022.
Most of the recent advocacy and media attention surrounding reproductive rights has focused on Roe and Dobbs. But, in December 2021, the FDA made a decision that allowed more people to get abortion pills.
Medication abortion, or abortion with pills, is a pregnancy termination method that involves taking two different drugs to end a pregnancy. According to a census of all known abortion providers conducted by the Guttmacher Institute, medication abortions accounted for 53% of abortions in the United States in 2020.
The pills for a medication abortion, mifepristone and misoprostol, are approved by the Federal Drug Administration (FDA) for use in the first 10 weeks of pregnancy. The FDA used to strictly limit where abortion pills could be given and who could prescribe them. But in April 2021, in response to the coronavirus pandemic, the FDA temporarily lifted the requirement that patients get the pills in person. In December 2021, the FDA made the temporary change permanent, allowing health care providers to prescribe abortion pills remotely and mail them to patients.
In January 2023, the FDA further expanded access to abortion pills by allowing retail pharmacies to offer the pills in stores or by mail order if they agree to certain rules. Patients would still need a prescription from a certified health care provider. It's unclear how many local pharmacies and big pharmacy chains, like CVS and Walgreens, will make the pills available.
Anti-abortion advocates are challenging medication abortions in federal court. On April 7, 2023, Judge Kacsmaryk, a federal judge in Texas, declared the FDA's longstanding approval of the abortion pill mifepristone to be invalid.
On April 12, 2023, a federal appeals court weighed in on Judge Kacsmarky's decision and allowed the FDA's approval of mifepristone to stand for now. But the court rolled back many of the changes the FDA has recently made to expand access to mifepristone, including allowing it to be used beyond seven weeks of pregnancy and sent through the mail. The appeals court's decision will limit medication abortions not just in states where abortion is now illegal, but also where it remains legal.
The Department of Justice (DOJ) immediately asked the U.S. Supreme Court to restore unrestricted access to mifepristone while a full appeal of Judge Kacsmaryk's ruling is heard. On April 21, 2023, just hours before the appeals court restrictions were set to take effect, the Court issued a one-paragraph order granting the DOJ's request. This is by no means the last word on mifepristone. Legal experts anticipate that access to mifepristone will remain unchanged until early 2024 at least, but the issue could eventually make its way back to the Supreme Court.
Now that some members of the current Supreme Court have demonstrated a willingness to take away a long-held constitutional right, many people are wondering if other constitutional rights could be next.
Roe said that a woman's right to choose to have an abortion is based on a constitutional "right to privacy." The majority opinion in Dobbs says that nothing in the opinion "should be understood to cast doubt on precedents that do not concern abortion." But Justice Clarence Thomas, in his concurring opinion, wrote that the Court should reconsider other decisions involving constitutional rights rooted in privacy, including the right to contraception (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).
In direct response to Dobbs, federal lawmakers passed the Respect for Marriage Act (RFMA) in December 2022. The law requires states to recognize the validity of out-of-state marriages, including same-sex and interracial unions, but it doesn't guarantee the right to marry as Obergefell does.
Many experts say that Dobbs doesn't mean that the abortion debate is even close to over. They predict that battles over abortion laws and regulations will continue to play out in state legislatures, courts, and elections all over the country for years to come.
Lawmakers will surely continue to fight over whether states can:
If you have questions about abortion laws in your state, the Center for Reproductive Rights updates the legal status of abortion in real time. The Guttmacher Institute also tracks state abortion laws and policies.