A middle ground on abortion that originalists should embrace
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As the Supreme Court weighs the future of Roe v. Wade, one of the chief arguments for overruling the case — and allowing states to ban abortions throughout pregnancy — is that the right to abortion is inconsistent with the Constitution’s original meaning.
The problem with this argument is that it is historically inaccurate. If the conservative justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.
This understanding would allow states to prohibit abortion after 15 weeks, just as Mississippi has done in the case to be argued Dec. 1. But states could not ban abortions any earlier. A moderate ruling of this kind could be just what the court needs to restore its battered credibility.
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