Thurgood Marshall’s unwavering support for reproductive rights and broader concepts of personal autonomy, as reflected in Roe v. Wade (1973) and related cases, did more than cement immediate legal protections. His endorsement of privacy as a fundamental constitutional principle would ripple across subsequent decades, influencing courts, legislatures, and societal views on reproductive freedoms. While Marshall did not author the majority opinion in Roe, his firm alignment with the decision—and the constitutional logic underlying it—proved foundational for the evolution of privacy rights. In the years following Roe, the Supreme Court continued to refine, expand, or sometimes curtail the scope of reproductive autonomy through a series of progeny cases. Simultaneously, shifting cultural and political currents generated fresh challenges to the very foundations Marshall had helped uphold. This chapter section explores the trajectory of privacy rights in the aftermath of Roe, focusing on key doctrinal developments, controversies, and the enduring impact of Marshall’s perspective.
The Legal and Cultural Shockwaves of Roe
When Roe v. Wade recognized a constitutional right to abortion under the Fourteenth Amendment’s Due Process Clause, it represented a watershed moment for reproductive autonomy. In the decision’s wake, states across the country were compelled to revise or repeal restrictive abortion laws, ushering in a period of profound social and legal adjustment. Thurgood Marshall, who joined the Roe majority, viewed it as part of a broader continuum that included Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)—earlier rulings that established privacy rights around contraception. By securing protection for a woman’s decision to terminate a pregnancy, Roe expanded the notion that personal decisions about procreation fell within a constitutionally protected zone of privacy.
On a personal level, Marshall’s longstanding commitment to civil rights and social justice meshed naturally with the concept of bodily autonomy: he saw reproductive restrictions as government overreach that disproportionately harmed impoverished and minority women. In the years to come, the Supreme Court would wrestle with how far the state could regulate abortion to protect potential life or to promote maternal health, while still adhering to the spirit of Roe’s privacy principles.
B. The Trimester Framework and Its Early Challenges
Roe’s trimester framework—allowing virtually no state regulation of abortion in the first trimester, limited regulation in the second, and more extensive restrictions in the third—was designed to balance a woman’s autonomy with states’ evolving interests in maternal health and fetal viability. Although Marshall did not craft that framework, he supported its core premise: during early pregnancy, the decision to continue or terminate rested primarily with the woman and her physician. Over time, however, lower courts and legislatures tested the boundaries of that framework by imposing a variety of regulations, from mandatory waiting periods to parental consent statutes. These legal moves would catalyze a new wave of Supreme Court rulings that examined the extent to which states could intervene without infringing on the Roe right.
Planned Parenthood v. Danforth (1976) and Bellotti v. Baird (1979)
Shortly after Roe, states began to pass laws requiring spousal or parental consent for abortions, prompting challenges in cases like Planned Parenthood v. Danforth (1976). The Court invalidated spousal consent requirements, emphasizing that a woman’s right to choose could not hinge on her husband’s approval. For minors, however, the jurisprudence was more nuanced. In Bellotti v. Baird (1979), the Court upheld the concept of parental involvement but mandated a judicial bypass for situations where a minor could demonstrate maturity or that parental involvement would not serve her best interests. Marshall joined the opinions or majorities protecting these rights, consistently arguing for minimal governmental intrusion upon reproductive decisions, particularly for vulnerable or dependent individuals.
Taken together, Danforth and Bellotti illustrated an early attempt by states to narrow Roe via procedural hurdles. While the Court maintained that such hurdles needed to be constitutionally permissible, it generally upheld the right to abortion established in Roe. Marshall’s influence was evident in the careful balancing of state interests against the primacy of an individual’s autonomy and dignity.
Harris v. McRae (1980) and Funding Restrictions
If cases like Danforth and Bellotti tested the edges of Roe in terms of consent and procedural burdens, Harris v. McRae (1980) confronted the question of government funding for abortion. The Hyde Amendment, passed by Congress, restricted the use of federal Medicaid funds for abortions except where the mother’s life was endangered. The Supreme Court upheld the Hyde Amendment, ruling that while Roe protected the right to an abortion, it did not obligate the government to subsidize that right.
Justice Marshall dissented forcefully. He condemned the Court’s refusal to strike down a funding scheme that effectively rendered abortion inaccessible for low-income women, particularly women of color. For Marshall, the constitutional right to reproductive autonomy was empty if financial barriers put the procedure out of reach. This dissent crystallized Marshall’s broader belief in substantive, not merely formal, equality: the Court’s acceptance of the funding ban exacerbated class and racial disparities, undermining the practical efficacy of Roe for marginalized groups.
Akron, Thornburgh, and the Court’s Shifting Tone
In the 1980s, the Court heard cases like City of Akron v. Akron Center for Reproductive Health (1983) and Thornburgh v. American College of Obstetricians & Gynecologists (1986), which addressed regulations involving waiting periods, mandatory physician-scripted statements designed to discourage abortion, and other procedural burdens. Thurgood Marshall joined the majorities striking down many of these provisions, reaffirming that states cannot cloak deterrence measures in the guise of “informed consent.” The Court underscored that regulations must genuinely protect maternal health rather than serve as ideological barriers.
Yet, these victories for reproductive autonomy were not absolute. While the Court invalidated the most blatant deterrents, the margin of the decisions hinted at increasing divisions on the bench. Marshall frequently aligned with Justices Brennan and Blackmun in a liberal bloc, but as the Court’s composition shifted under President Ronald Reagan, the future of Roe grew less certain.
Webster v. Reproductive Health Services (1989) and the Chipping Away at Roe
In Webster v. Reproductive Health Services, the Supreme Court upheld portions of a Missouri law that, among other things, prohibited the use of public facilities and employees for performing or assisting abortions not necessary to save the mother’s life. Although the Court declined to overrule Roe, it signaled a willingness to allow states more latitude in restricting access. The decision’s fractured opinions portrayed a Court no longer solidly behind Roe. Justice Sandra Day O’Connor’s concurrence foreshadowed a new standard—the “undue burden” test—warning that the Roe trimester framework was on shaky ground.
For Marshall, who remained staunchly in favor of broad reproductive autonomy, Webster represented a troubling drift away from Roe’s clarity. Even if the result did not entirely dismantle abortion rights, the decision’s reasoning gave states encouragement to craft more burdensome regulations, counting on a sympathetic Court to uphold them. Marshall’s dissents in these cases continued to stress the real-world impact on women with few resources, emphasizing that any rollback of Roe disproportionately harmed those already struggling with limited healthcare access.
Planned Parenthood v. Casey (1992): The “Undue Burden” Standard Emerges
By 1992, Thurgood Marshall had retired from the Supreme Court, but his influence lingered. In Planned Parenthood v. Casey, the Court confronted a Pennsylvania law imposing a 24-hour waiting period, parental consent for minors (with a judicial bypass), and spousal notification. In a dramatic decision, the Court reaffirmed the “essential holding” of Roe—that a woman has a right to choose abortion before viability—but replaced the trimester framework with the undue burden standard. Under this approach, states could regulate abortions so long as they did not place a “substantial obstacle” in the path of a woman seeking the procedure.
Although Marshall was no longer sitting, Casey’s partial retention of Roe resonated with his unwavering view that the Constitution protects reproductive autonomy. Yet, the undue burden test arguably gave states more regulatory leeway than Roe had. The test’s subjectivity meant that courts would need to parse which restrictions were permissible attempts to protect fetal life or promote maternal health, and which rose to the level of an unconstitutional burden. In short, Casey preserved the right to abortion but launched a new era of intense litigation over the permissible scope of state regulations—a development that would profoundly shape the post-Marshall legal landscape.
Incremental Erosion Through Targeted Regulation of Abortion Providers (TRAP Laws)
Following Casey, anti-abortion advocates exploited the flexibility of the undue burden standard. States enacted myriad laws aimed at abortion providers—often dubbed “TRAP laws” (Targeted Regulation of Abortion Providers)—which imposed stringent building requirements, admitting privileges mandates, and other regulations ostensibly to protect women’s health. Critics argued these measures were designed to close clinics rather than improve patient care. In states that adopted such laws, clinic shutdowns frequently created large geographic gaps in abortion access.
While the Court struck down some of the most draconian TRAP laws in Whole Woman’s Health v. Hellerstedt (2016), the post-Casey period demonstrated how states could enact an array of incremental restrictions that, cumulatively, made accessing abortion far more difficult—especially for poor, rural, or minority women. Thurgood Marshall’s earlier warnings in cases like Harris v. McRae thus found renewed relevance: merely declaring a theoretical right means little if states can systematically undercut it through regulations and resource constraints.
Parental Involvement and Ultrasound Requirements
Other post-Casey developments included expanded parental involvement laws for minors and mandatory ultrasound requirements. While the Court generally upheld parental consent or notification statutes with judicial bypass provisions, some states went further, imposing multiple layers of adult authorization. Some, too, passed laws requiring that a pregnant person undergo an ultrasound before obtaining an abortion, sometimes obliging the provider to display or describe the image. Courts evaluating these regulations typically used the undue burden test, often generating conflicting rulings in different circuits.
Marshall’s spirit hovered over these debates. His consistent emphasis on placing women—particularly the youngest, poorest, or most isolated—at the center of constitutional analysis clashed with the paternalism often embedded in these laws. Though he could no longer pen dissents, his legacy reminded legal scholars and advocates that reproductive rights must be measured by practical outcomes, not purely formal legal doctrines.
Gonzales v. Carhart (2007): Upholding a Federal Ban
In Gonzales v. Carhart, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act, which barred a specific procedure typically utilized in second-trimester abortions. Critics argued the law lacked an adequate health exception for the pregnant person and thus contravened Casey. The 5–4 majority, however, found the ban did not impose an undue burden. The decision, written by Justice Anthony Kennedy, illustrated the Court’s willingness to grant states (and Congress) considerable deference in restricting certain abortion methods.
Marshall’s viewpoint would surely have skewed toward dissent, seeing in the ban’s lack of a health exception a direct assault on women’s autonomy and well-being. Even though the majority emphasized that other abortion techniques remained legally available, the ruling demonstrated that the door to targeted restrictions—which Marshall had consistently opposed—remained open under the undue burden framework.
Whole Woman’s Health v. Hellerstedt (2016): A Momentary Reprieve
While Carhart underscored how the Court might uphold certain procedural bans, Whole Woman’s Health v. Hellerstedt represented a pushback against excessive state regulations. In striking down Texas’s admitting privileges and surgical-center standards for abortion providers, the Court held that laws must not only profess concern for women’s health but must also yield actual health benefits commensurate with the burdens they impose. The justices reasoned that these requirements offered negligible medical benefits while significantly curtailing access, thus constituting an undue burden.
Though decided decades after Marshall’s tenure, Whole Woman’s Health echoed his insistence on subjecting government rationales to meaningful scrutiny. He had long argued that paternalistic justifications often masked ideological attempts to deter or punish abortion. Yet, Hellerstedt was not the final word on TRAP laws. Some states continued to propose similar or slightly modified restrictions, gambling on the possibility of a changing Court composition more inclined to uphold them.
June Medical Services v. Russo (2020): A Narrow Victory
In June Medical Services v. Russo, the Supreme Court again considered a law nearly identical to Texas’s admitting privileges requirement, this time in Louisiana. By a slim 5–4 majority, the Court struck down the law as an undue burden, citing Whole Woman’s Health as precedent. However, the reasoning in the plurality and concurring opinions was fragmented, hinting at an uncertain future for abortion rights. While June Medical Services technically followed Hellerstedt, the close vote and shifting alignment of the justices signaled that the Court’s support for Roe-based protections might be precarious.
Thurgood Marshall’s emphasis on practical realities for pregnant individuals resonates strongly here: had the law taken effect, Louisiana would have been left with a drastically reduced number of clinics. Even as the Court struck down the regulation, the slim margin suggested that the undue burden standard could evolve—or erode—should the Court’s composition tilt further toward a colorblind or conservative approach to constitutional interpretation.
The Fall of the Roe/Casey Precedent
In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court delivered a seismic ruling: it overturned Roe and Casey, declaring that the Constitution does not confer a right to abortion. This reversal authorized individual states to regulate or ban abortion with minimal federal judicial oversight. The Dobbs majority criticized the reasoning in Roe and Casey as lacking historical grounding and argued that the authority over abortion should revert to the legislative arena.
For those mindful of Thurgood Marshall’s legacy, Dobbs was the ultimate repudiation of a half-century of constitutional jurisprudence affirming reproductive privacy. Marshall’s viewpoint, which championed a dynamic reading of the Fourteenth Amendment—one that safeguarded individual autonomy in intimate decisions—was swept aside by the Court’s return to “originalist” or “textualist” methods of constitutional interpretation. Indeed, the majority’s emphasis on historical tradition contrasts starkly with Marshall’s conviction that the Constitution must adapt to modern understandings of rights and human dignity.
The Aftermath and Marshall’s Relevance
Dobbs unleashed a tide of state-level legislation banning or severely restricting abortion, often without exceptions for rape, incest, or severe fetal anomalies. Regions of the country swiftly enacted trigger laws, while others moved to enshrine abortion rights at the state level. The patchwork landscape that emerged underscores the very disparities Marshall had long cautioned against: those with the financial means can travel to jurisdictions where abortion is legal, while the poor or marginalized face profound barriers.
Though the Supreme Court has erased federal constitutional protections for abortion, Marshall’s philosophical framework remains a clarion call among activists, scholars, and dissenting jurists. His belief that rights must be effective in practice—especially for vulnerable communities—continues to animate debates over whether legislative or judicial interventions might re-establish nationwide safeguards. In a sense, the new legal battles over medication abortion, telemedicine, and interstate travel for reproductive services reflect an extension of the core tension between formal recognition of rights and their actual implementation, a tension that Marshall persistently highlighted.
Broadening the Concept of Privacy
Although Dobbs specifically targeted abortion rights, the concept of privacy that Roe once anchored has influenced other domains, from end-of-life decisions to sexual orientation and gender identity. Marshall’s broader views on personal autonomy, forged in cases like Stanley v. Georgia (1969) and Eisenstadt v. Baird (1972), have helped shape how courts and legislatures approach issues like contraceptive access, same-sex intimacy, and marriage equality. Indeed, decisions like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015) trace their lineage to the same fundamental principle that the Fourteenth Amendment protects intimate personal choices from unwarranted government interference.
Though Dobbs unsettled the doctrinal foundation built on Roe, Marshall’s advocacy for a living Constitution—one responsive to evolving societal values—still guides arguments for expansive privacy rights in other contexts. Some fear that Dobbs may open the door to re-litigating these precedents, but many jurists and scholars continue to champion the expansive reading of personal autonomy that Marshall exemplified.
The Intersection with Racial and Economic Justice
Marshall consistently foregrounded the intersection between reproductive rights and broader social equity. He recognized that laws regulating abortion, contraception, or sexual behavior rarely affect all demographics equally. Rather, such laws often impose the greatest burdens on those least able to navigate legal, financial, or logistical hurdles. In modern debates about traveling across state lines for abortion or affording out-of-pocket reproductive healthcare, Marshall’s insights about equality ring prescient. Advocates draw on his arguments to highlight the disproportionate impact that post-Dobbs restrictions have on poor women, women of color, and rural communities with limited healthcare infrastructure.
This intersectional lens resonates in ongoing litigation challenging new abortion bans under state constitutions, sometimes using anti-discrimination or equal-protection arguments. While these suits often invoke local or state-level precedents, the moral reasoning echoes Marshall’s central thesis: that the Constitution must be applied in a manner that uplifts the marginalized, rather than reinforcing existing disparities.
In the decades since Roe v. Wade, Thurgood Marshall’s steadfast commitment to reproductive autonomy has reverberated through a series of progeny cases. Initially, Roe and its immediate successors expanded the constitutional promise of privacy, reflecting Marshall’s insistence that the Constitution protect personal, intimate decisions from the heavy hand of the state. Over time, shifting Court majorities introduced new frameworks—especially Casey’s undue burden standard—under which states could incrementally erode abortion access. Still, the essential right recognized in Roe endured until 2022, when Dobbs v. Jackson overturned both Roe and Casey, representing the most dramatic reconfiguration of reproductive rights in half a century.
For proponents of Marshall’s philosophy, Dobbs stands as a stark reminder that constitutional rights, far from being fixed, are subject to reinterpretation. The majority’s historical approach to the Fourteenth Amendment stands in tension with Marshall’s view of it as a living document, meant to evolve in ways that promote equality and liberty. Yet his influence continues to shape the discourse in multiple ways. His belief that any retreat from reproductive rights disproportionately harms vulnerable populations infuses policy debates at the state level, where decisions about abortion access now largely reside. Simultaneously, the broader notion of privacy championed by Marshall remains relevant to issues ranging from LGBTQ+ freedoms to data protection in a digital age.
In sum, while the post-Roe landscape has fluctuated dramatically, Thurgood Marshall’s legacy endures as both a foundational pillar and a moral compass for those who view reproductive autonomy as integral to constitutional liberty. The progeny cases that followed Roe—from Danforth to Casey, Whole Woman’s Health, and beyond—demonstrated both the resilience and fragility of privacy rights, shaped by changing judicial philosophies, political pressures, and social movements. With Dobbs, the Supreme Court has fundamentally altered the doctrinal terrain, yet the essential questions Marshall helped raise—about fairness, autonomy, and the real-world impact of legal rulings—remain more pressing than ever. It is through this lens that his contributions continue to inform modern advocacy, legislative reform, and the ongoing quest to reconcile constitutional principles with the lived realities of Americans navigating reproductive decisions.