Constitutional Protection for the Right to Abortion: From Roe to Casey to

Whole Woman’s Health

In its landmark ruling in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court

recognized that the right to abortion is a fundamental liberty protected by the

Fourteenth Amendment of the Constitution. Since Roe the Court has repeatedly

reaffirmed the Constitution’s protection for this essential liberty, which guarantees each

S. Ct. 2292 (2016), as revised (June 27, 2016), it has also recognized that without

access to abortion, the right is meaningless.

Roe built on earlier cases in which the Court held that the constitutional right to privacy protected an

individual’s rights to reproductive autonomy. In Griswold v. Connecticut, 381 U.S. 479 (1965), the

Court struck down a ban on the use or sale of contraceptives to married couples because it violated the

constitutional right to privacy. In another case, Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court

extended this fundamental right to contraception to unmarried people. Eisenstadt elaborated on the

right to privacy as “the right of the individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear

or beget a child.” Id. at 488.

personhood were they formed under compulsion of the State.” Id. at 851.

Three key cases define the constitutional protection for a woman’s right to abortion: Roe,

contraception, education, and family relationships, the decision as to whether to terminate a pregnancy

is fundamental to a woman’s “personal liberty.” See id. at 153. The Court thus recognized the great

“detriment that the State would impose upon the pregnant woman by denying this choice,” including

forcing her to endure health risks associated with pregnancy and the costs of bringing a child into a

family not prepared for one. Id.

Like other fundamental rights, the right to abortion recognized in Roe was subject to strict scrutiny—

the highest level of constitutional inquiry—which required that infringements on the right be narrowly

tailored to serve a compelling government interest. The Court recognized two interests—potential life

and women’s health—and announced that it would use the trimester system to determine when each of

these state interests was compelling, disallowing state regulation of abortion in the first trimester, but

decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 879. The Casey Court

elaborated that abortion “involve[s] the most intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy” and is “central to the liberty protected by

the Fourteenth Amendment.” Id. at 851. It emphasized the fundamental values of dignity and equality

that the abortion right reflects, observing that a woman’s experience is “too intimate and personal for

the State to insist, without more, upon its own vision of the woman’s role, however dominant that

vision has been in the course of our history and our culture. The destiny of a woman must be shaped to

a large extent on her own conception of her spiritual imperatives and her place in society.” Id. at 852.

Although the Court affirmed Roe’s holding that states cannot ban abortion prior to viability, the joint

opinion departed from strict scrutiny and adopted the “undue burden” standard to determine which

substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. at

878.

Casey was a challenge to an omnibus Pennsylvania law that imposed a 24-hour mandatory delay on

women seeking abortion; state-mandated information (biased counseling) intended to persuade women

to choose childbirth over abortion; and parental consent and spousal notice mandates, among other

requirements. In earlier cases, the Court had struck down biased counseling and mandatory delay laws

because they failed strict scrutiny. Applying the undue burden standard, however, Justices O’Connor,

Souter, and Kennedy upheld the mandatory 24-hour delay, biased counseling, and parental consent

After Casey, states passed hundreds of incremental restrictions on abortion and courts evaluating the

constitutionality of these laws struggled to apply key features of the undue burden test. Some held that

denied, 136 S. Ct. 2545 (June 28, 2016). Other courts conducted no such inquiry, maintaining that an

Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir.), modified, 790 F.3d 598 (5th Cir. 2015), rev’d

and remanded sub nom. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised

(June 27, 2016).

courts to examine whether abortion restrictions have benefits that outweigh the burdens they impose

and strike them if they fall short.

relate to its asserted interest. Id. at 2310. In making this determination, courts cannot defer to a state’s

claims about how the law does or might further its interests; it must conduct its own independent

inquiry based on the evidence presented in the case. Id. Courts must then determine if the law confers

benefits that outweigh the burdens it imposes on women, and declare the law unconstitutional if the

burdens outweigh the benefits. Id. at 2309. When engaging in this balancing, courts must take into

account whether the evidence is based on scientifically reliable methodology. See id. at 2309–10.

Applying this standard, Whole Woman’s Health struck down the two parts of a Texas law challenged in

that case: the “admitting privileges” provision requiring all abortion providers to obtain local hospital

admitting privileges, and the “ambulatory surgical center” provision requiring every licensed abortion

facility to meet hospital-like building standards. Id. at 2313, 2318. While the State of Texas claimed

that it enacted these laws to advance women’s health by making abortion safer, trial evidence showed

that neither requirement offered any health or safety benefits. At the same time, evidence showed that

benefits, the Court struck down both parts of the Texas law.

protection the Court has repeatedly reaffirmed the Constitution affords to abortion, along with the

underlying principles of liberty, dignity, equality, and bodily integrity the right reflects. Any nominee

must recognize not only that the Constitution encompasses a woman’s right to abortion, but also that it

affords robust protection to that right.