Mark Kende (Drake University Law School) has posted Constitutional Pragmatism and Abortion (Drake Law Review, Vol. 64, No. 4, 2021) on SSRN. Here is the abstract:
This symposium Article proposes the U.S. Supreme Court utilize a novel form of American based pragmatic interpretation for constitutional cases. Other modalities remain relevant but this Article shows the power of pragmatism. For example, this pragmatism assumes there are often irreconcilable moral divides and corresponding disagreements about precedents in many instances. Indeed, this pragmatism can even be of use regarding the "construction" phase of originalism. Specifically, to decide cases, this pragmatism employs inductive reasoning, empiricism, candor, humility, tolerance, an evenhanded examination of both sides, balancing, and real world consequences. This list embodies a "thin" widely accepted set of factors and morality, as compared to the problems with "thick" morality. The Article reaches the conclusion that the constitutional debate over abortion is close, but the fact that women will die without this legal option is pragmatically decisive.
