Background: the word "abortion" isn't in the Constitution
Neither "abortion" nor "privacy" appears anywhere in the U.S. Constitution. So the whole fight runs through one line of the 14th Amendment: no state shall "deprive any person of life, liberty, or property, without due process of law."
Which rights count as "liberty"? That's the substantive due process debate in a nutshell.
The cases: Roe (1973) and Casey (1992)
- Citation
- Roe v. Wade, 410 U.S. 113 (decided Jan 22, 1973)
- Vote
- 7–2, opinion by Justice Harry Blackmun
- Parties
- "Jane Roe" (Norma McCorvey) v. Henry Wade, Dallas County District Attorney
- Core
- The right of privacy covers the abortion decision; trimester framework
In 1992, Planned Parenthood v. Casey (505 U.S. 833) kept Roe's core but ditched the trimesters. New rule: before viability, states can't impose an "undue burden" on the decision.
Law gets hard when you ask: when is it okay to throw out a decision that's already on the books? There's no formula for that, which is a big reason we hand the job to judges. In 2022, the Court answered that exact question head-on: can a precedent this big just… go?
The ruling: Dobbs v. Jackson Women's Health Organization (2022)
- Citation
- Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (decided June 24, 2022)
- Law at issue
- Mississippi's ban on most abortions after 15 weeks
- Vote
- 6–3 on upholding the law; 5–4 on overruling Roe and Casey (Chief Justice Roberts concurred only in the judgment)
- Author
- Justice Samuel Alito
Justices Breyer, Sotomayor, and Kagan dissented jointly: people had built their lives around this right for decades, and tossing precedent like this damages the Court's legitimacy.
Read Dobbs as an official PDF from supremecourt.gov; Roe is on Justia.
Where things stand: a split map, and Korea
- State by state: after Dobbs, abortion is decided by state legislatures and ballot measures. In August 2022, Kansas voters rejected an amendment that would have removed abortion protections from the state constitution.
- Abortion pills: in FDA v. Alliance for Hippocratic Medicine (2024, No. 23-235), the Court unanimously tossed the challenge for lack of standing, without ruling on the drug's approval itself.
| Question | U.S. (Dobbs, 2022) | South Korea (Constitutional Court, 2019) |
|---|---|---|
| Result | No federal constitutional right; states decide | Criminal abortion provisions held nonconforming to the Constitution (2017Hun-Ba127) |
| Method | History-and-tradition test | Woman's right to self-determination vs. protection of fetal life, under proportionality |
| After | Patchwork from bans to protections | Legislature had until end of 2020; no new law passed, provisions lost effect Jan 1, 2021 |
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Criticism and debate
- Pro-Dobbs: Roe invented a right that isn't in the Constitution; Dobbs just returned the question to voters.
- Anti-Dobbs: it treated stare decisis way too lightly, and the same "history and tradition" logic could reach contraception or same-sex marriage.
- Method: is the history-and-tradition test (Washington v. Glucksberg, 1997) actually neutral, or does it just bake in the past?
Underneath it all is one question: who decides how far constitutional liberty reaches? Judges? Legislatures? Voters at the ballot box? Get that question straight and you can read basically any future rights fight, not just this one. Here's a good frame if you're writing about it.
Study notes
- Comparative paper: U.S. history-and-tradition test vs Korea's proportionality test. Same issue, two different scales, super clean comparison. If you want to understand the scales first, check proportionality and levels of scrutiny.
- Korean presentation material: Bioethics Presentation on Abortion: Definition and Abortion Law, the Constitutional Nonconformity Decision, and Pro-Life and Feminist Perspectives covers abortion law, the nonconformity ruling, and pro-life vs feminist perspectives in one deck.
References and official sources
- Roe v. Wade, 410 U.S. 113 (1973). Justia
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Justia
- Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). supremecourt.gov
- Constitutional Court of Korea, Decision 2017Hun-Ba127 (Apr. 11, 2019).