Constitutional Pragmatism and Abortion

24 Pages Posted: 12 Sep 2022

See all articles by Mark Kende

Mark Kende

Drake University Law School

Date Written: 2021


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.

Keywords: Abortion, pragmatism, constitution, interpretation, modalities, Supreme Court, empiricism, balancing

Suggested Citation

Kende, Mark, Constitutional Pragmatism and Abortion (2021). Drake Law Review, Vol. 64, No. 4, 2021, Available at SSRN:

Mark Kende (Contact Author)

Drake University Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-3354 (Phone)
515-271-1958 (Fax)


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