A Survey of the United States Supreme Court’s Abortion Jurisprudence

Abstract

Abortion is the most controversial issue in contemporary American constitutional law. Presidential and congressional campaigns, nominations to the federal judiciary, and public debate have been roiled by the abortion issue since the US Supreme Court’s decision in Roe v. Wade in 1973. This essay does not aspire to be a comprehensive legal history of the abortion issue in the United States (For detailed historical accounts, see Joseph W. Dellapenna, Dispelling the Myths of Abortion History (2006); Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015); Clarke D. Forsyth, Abuse of Discretion: The Inside Story of Roe v. Wade (2013); and David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994).). Instead, this chapter presents the major Supreme Court decisions on the issue from 1973 to 2016. It describes their holdings and notes basic trends in the evolution of the Court’s approach to abortion so as to orient the reader to the major cases on abortion and point to areas of further research.

The US Supreme Court has played a central role in the abortion issue because the Court is the highest court in the American legal system regarding questions of federal constitutional law. Beginning with Roe—as discussed below—the Court has held (though controversially) in a series of cases that the right to abortion is secured by the Fourteenth Amendment to the Constitution, specifically by the Fourteenth Amendment’s requirement that the states may not “deprive any person of life, liberty, or property, without due process of law.” The right to abortion, according to the Court, is such a “liberty” protected against deprivation by the state.