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Extraordinary innovations in law and politics


A con law professor presents a Grand Bargain that will end the national debate over abortion:

To be potentially viable, a national compromise would include four elements. First, it would permit abortion during a specified period of gestation, without restriction, during the few first months of pregnancy. Second, it would prohibit abortion later in pregnancy. Third, even after this point in pregnancy, there would be exceptions to the abortion prohibition. And fourth, the congressional compromise would be national in scope, with federal law controlling the issue of abortion and preempting state law to the contrary. The fourth element, federal preemption, bears emphasis.

It means that the congressional compromise would displace and nullify state abortion policies. There would be the same right to abortion in red and blue states alike, subject to the same limitations.

Hmm, a national standard under which women would be permitted to choice to have an abortion for a significant period of time, after which abortion would be banned, with exceptions for the life and health of the mother. Sounds good! Indeed, I’ve decided to flesh that out in a little more detail. I think you’ll find it persuasive. Glad we’ve resolved everything!

The idea that not only Roe but even Casey required “absolutist” pro-choice policies is bizarre, but pro-lifers have been able to sell it very successfully, just like they’ve sold the idea that France has more restrictive abortion policies than Mississippi.


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