AN OVERVIEW OF U.S. ABORTION LAW

The United States is governed through a system of federalism, which means that power is divided between the federal and individual state governments. According to the Supremacy Clause of the U.S. Constitution, federal law, and protections afforded by the U.S. Constitution, supersede state law when the two are in conflict. The Supreme Court of the United States (SCOTUS) interprets the U.S. Constitution, and can strike down federal and state laws it interprets as unconstitutional.

For nearly 50 years, SCOTUS held that abortion was constitutionally protected as part of a fundamental right to privacy protected under the Due Process Clauses of the Fifth and Fourteenth Amendments. Other fundamental privacy rights protected by the Constitution include the right to make decisions in matters related to procreation, child rearing, contraception, marriage (including interracial marriage and same-sex marriage), and consensual sexual activity. Under this line of case law, abortion could not be completely banned by the states. For 50 years, SCOTUS was the driving force in crafting the legal landscape of abortion access. Abortion opponents immediately began passing abortion restrictions at the state level to test the limits and undermine the Constitutional right to an abortion. Presidential appointments to SCOTUS have become increasingly politicized because of the Court’s power to interpret the constitutionality of state abortion laws, among other things. Some key SCOTUS decisions involving abortion access include:

• In 1973, Roe v. Wade – This decision decriminalized most abortion across the U.S.. In the decision, the Court found that people have a right to seek an abortion, and established a “trimester framework” under which states could increase restrictions as a pregnancy progressed.
• In 1992, Planned Parenthood of SE Pennsylvania v. Casey – This decision struck down several provisions, including a requirement to notify a spouse before seeking an abortion, but upheld some restrictions, holding that States could restrict abortions, as long as restrictions do not place “undue burden” on the person seeking abortion. Following Casey, courts rarely found that subsequent laws placing restrictions on abortion violated the high bar of the “undue burden” test, leading to a proliferation of abortion restrictions resulting in reduced access.
• In 2016, Whole Woman’s Women’s Health v. Hellerstedt – This decision struck down a Texas law that imposed burdensome, medically unnecessary restrictions on abortion clinics that made operations nearly impossible and resulted in the shuttering of over half of abortion clinics across Texas. The Court found the restrictions violated the “undue burden” test created by Casey. The Court found that the restrictions placed an undue burden on abortion seekers’ constitutional right to access to abortion.
• In 2021, Whole Woman’s Health v. Jackson – The Supreme Court declined to block a Texas law authorizing private citizens to sue providers who perform abortions after 6 weeks gestation, ending most abortion care in the state.
• In 2022, Dobbs v. Jackson Women’s Health Organization – This decision overturned Roe as “wrongly decided,”completely stripping the American public of the constitutional right to abortion and therefore allowing states to restrict, ban, and criminalize abortion care. The current legal status of abortion by state and territory (as of the date of publication) are summarized in the map below, at the courtesy of the Center for Reproductive Rights, where interactive versions are available. In response to Dobbs, many states enacted protections for abortion rights, leading abortion opponents like Project 2025 to call for federal action to ban abortion. One example is reanimating the Comstock Act of 1873, an antiquated federal law, prohibiting the mailing of materials related to abortion, overriding state protections and further obliterating abortion rights and eliminating access (Guttmacher 2024).