The US Supreme Court has recently overturned the ruling that abortion is a constitutionally guaranteed right.

Given that a layman's reading of the US constitution gives no mention of abortion, what was the legal justification for the original decision declaring it to be a constitutional right?

  • 3
    Did you read the original decision? Jun 25, 2022 at 14:09

1 Answer 1


In Roe v. Wade, the primary holding is that "a person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception". The opinion finds that there does exist a right to privacy, and that it is protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. It is immaterial that there is no mention of abortion in The Constitution. There is also no mention of TV and radio transmissions, the internet, speech-amplifying devices, or automated forms of text reproduction and yet the vague words of the First Amendment w.r.t. "press" and "speech" are interpreted as protecting your right to blog. Revolvers and various other firearms that did not exist at the time of the writing of the constitution are not mentioned, but they (the right to have them) are protected under the Second Amendment. Lack of specific mention is irrelevant to determining constitutional protection.

§VIII of the opinion discusses the right of privacy, and the ruling roots the recognition of that right in Union Pacific R. Co. v. Botsford, 141 U. S. 250, and numerous other SCOTUS rulings – Stanley v. Georgia, 394 US 557; Terry v. Ohio; Katz v. US, 389 US 347; Boyd v. US, 116 US 616, Olmstead v. US, 277 US 438; Griswold v. Connecticut, Meyer v. Nebraska, 262 U. S. 390 and so on.

You might then look at the Dobbs ruling to see whether those arguments are addressed and refuted. That, at least, is where you would start in understanding the legal background.

  • I don't really see what privacy has to do with terminating a pregnancy but thanks for the tips on further reading.
    – DrMcCleod
    Jun 25, 2022 at 16:34
  • 1
    @DrMcCleod The right to privacy is the right against government intrusion into private life (as a side note, in many languages like French, the translation of privacy is simply "private life"). Many would say whether to have a child is one of the most private decisions a person can make. The same line of reasoning also applies to e.g. right to have sex with another person of the same sex. 'There's no place for the state in the bedrooms of the nation' (although not a quote for the U.S., the same reasoning applies), the right is one of privacy.
    – xngtng
    Jun 25, 2022 at 20:54
  • @xngtng I see. The counter-argument is presumably that once a child is conceived that decision has already been made and is therefore no longer a private matter.
    – DrMcCleod
    Jun 26, 2022 at 7:55
  • @DrMcCleod well the counter arguments etc. are widespread and under heavy debate and I'm not going to go into that. I was just explaining that the right to privacy as proponents of this line of constitutional interpretation understand is not the right to private information as the word privacy is commonly used now, but extend to far more areas of one's private life. Of course there can be other considerations, no rights are absolute, but it should be relatively easy to understand why some believe the right to privacy, if such right exists under the Constitution, would extend to abortion.
    – xngtng
    Jun 26, 2022 at 12:06

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