Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), recognized a federal constitutional right to abortion before fetal viability, i.e., the “capability of meaningful life outside the mother’s womb.” See Roe, 410 U.S. at 163; Casey, 505 U.S. at 846. Read together, Roe and Casey held that states may regulate (but not ban) abortions before viability to protect maternal or fetal health so long as such regulations do not impose an “undue burden” on a woman seeking an abortion of a nonviable fetus. See Casey, 505 U.S. at 877-78 (plurality opinion).

In Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228 (June 24, 2022), a five-justice majority of the U.S. Supreme Court sustained a Mississippi law that bans (with exceptions for life and health) abortion after 15 weeks’ gestation, which is before the point at which a fetus is now generally regarded as “viable” outside the womb. The court overruled Roe and Casey, holding that abortion is not among those individual rights protected by the federal Constitution and returning the issue of abortion policy to state legislatures: “[T]he Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” Id. at 2279.

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