Discourses on the “Right to Life”: The Post- Roe Era vs. the Contemporary Era

Despite the passage of Roe v Wade in 1973, access to abortion remains a particularly politically controversial issue within the United States. By combining a historical, theoretical, and political approach to understanding the issue area of abortion, the central questions that this paper addresses are: Have discourses in judicial rulings on the legality of abortion changed over time? Why is Roe v Wade not settled? How and why are state decisions continually changing? In order to answer these questions, this work critically examines the legal logic exercised by Supreme Court Justices in two distinct eras of abortion law cases: the post-Roe era (1973-1985) and the contemporary era (2007-2020). In the post-Roe era, Planned Parenthood v Danforth (1976), Colautti v Franklin (1979), and Harris v McRae (1980), and Akron v Akron Center for Reproductive Health (1983) are analyzed, while in the contemporary era Gonzales v Carhart (2007), Whole Woman’s Health v. Hellerstedt (2016), and Box v Planned Parenthood of Indiana and Kentucky (2019) are analyzed. Moreover, Supreme Court majority opinions and dissents are coded in the context of three distinct legal frameworks: natural law theory, legal positivism, and law as integrity theory. Each of the legal frameworks provide a conceptual basis to analyze the central trends in argumentation surrounding access to abortion from 1973 to the present day. The central implications from analyzing the data trends illustrate the evolving threat to bodily autonomy of reproducing individuals and a larger threat to pluralism in United States democracy in the 21st century