In a rambling address posted on Truth Social on Monday, Donald Trump searched for a lifeline on the issue of abortion. Widespread revulsion with attempts to ban abortion is one of the most powerful forces in American politics right now, and as the person whose appointments to the Supreme Court enabled the overturning of Roe, Trump is worried about being on the receiving end of it. In the message, he adopted what has become, post-Roe, the “moderate” Republican position: abortion should be left to the states rather than being the subject of national legislation, and state bans should contain exceptions for rape, incest, and the life of the mother (the so-called “three exceptions”).
Predictably, the message hasn’t really pleased anyone. The man who boasts of overturning Roe is not going to get any support from pro-choice voters. Meanwhile, restrictionists are howling about betrayal and trying to pressure Trump to support a federal abortion ban.
In one sense, I agree with Politico that Trump’s statement “changes nothing”. Angry restrictionists are not about to vote for Joe Biden, and pro-choicers are not going to flock to Trump. That being said, I think this framing is a little facile. The statement matters not necessarily because of what it says but because of what it doesn’t say. Trump could have wholeheartedly embraced restrictionism, he could have embraced the less “moderate” position of a federal 15-week ban, or he could have come out with pro-choice guns blazing. There’s precedent in his past positions for any of these approaches, and each one could have significantly shaken up the presidential contest.
Instead, Trump flubbed it, trying a piece of coalition management which is going to turn out to be too clever by half. He not only failed to please anyone, but he failed to put forward a sustainable position. Instead, Trump’s statement opens up a whole new set of questions about what his policy would be when in office, questions that are going to continue to dog him throughout the campaign - and most likely continue to put him firmly on the wrong side of the issue. Consider the following:
The chance of Congress passing federal abortion legislation is vanishingly small. Advocates would need a majority in the House and 60 votes in the Senate to get an abortion ban passed. Abortion legislation cannot be passed using reconciliation, which is the only way that the Biden administration got anything controversial through the Senate. It’s not going to happen.
But the symbolism of a candidate’s position on federal abortion legislation is still important, and Trump’s statement doesn’t really help him out here. Restrictionists want a federal abortion ban, but what about three-quarters of Americans want is a federal guarantee of abortion rights. By declining to endorse any federal guarantee of rights - even for the three exceptions - Trump has few defenses against the charge that he’s comfortable with abortion rights being stripped away, and with the lives of pregnant women being endangered across the nation. Mumbling about “states’ rights” won’t change that.
It might be unrealistic to expect the next Congress to pass national abortion legislation, but that doesn’t mean that who is president is unimportant. In fact, the contrary is true - Congress’ inability to act means that any changes to the post-Roe status quo will have to come about through presidential or judicial action. So who is president is important, not only because of what he will do with his own powers, but also because of who he will nominate to be judges.
Take just two proposals which are currently floating around restrictionist circles. One is to have the Food and Drug Administration revoke its approval of the abortion drug mifepristone, which accounts for more than half of all U.S. abortions. The other is to use obscure 1873 legislation called the Comstock laws to ban the mailing of any item or drug used in an abortion procedure, effectively banning the procedure nationally.
(Annalee Newitz wrote a great alternative history/sci-fi book called The Future of Another Timeline in which time-traveling feminists battle it out with time-traveling incels inspired by Anthony Comstock, originator of the laws, to determine the future of America. It’s awesome!)
Both the mifepristone and the Comstock ideas are long shots which would be subject to all sorts of objections and court challenges. Nevertheless, if he is president next year, Trump will have to decide whether to try them out or not. He will get to appoint the officials who would implement them, and also the judges who might rule on whether they are legal or not. And because of this, he’s going to get asked about these issues during the campaign. What is he going to say? Unless he rules them out and endorses Congressional action to rule out these possibilities, he appears open to them - after all, they’re what his biggest supporters want him to do.
Meanwhile, the Supreme Court appointments that allowed for the overturning of Roe continue to be a millstone around Trump’s neck. He still boasts about the death of Roe. If another Supreme Court vacancy were to open up during his time in office, presumably he would appoint another nominee with restrictionist views. He can certainly expect to be asked about that during the campaign. Given his prior record, anything but a firm denial puts him on the wrong side of the issue - again.
The complexity of the issue, and the constant criticism from both sides, means that Trump is bound to change his position during the campaign. That is, in fact, par for the course for him - whenever he makes a scripted address to camera, he nearly always contradicts it sooner or later in response to some new impulse. Assuming that he decides against tacking hard to either the restrictionist or the pro-choice position, he’ll probably continue to flub and fumble the issue throughout the year, providing more ammunition to the pro-choice side.
And remember that the pro-choice side is the overwhelmingly popular one, consisting of three-quarters of Americans in recent polls. It’s the issue that many observers believe led to the Republicans’ dismal performance in 2022, and one which could sink Trump in 2024. His fumbling will hence prompt panic, and then more fumbling.
That’s why, if this statement was designed to put the issue to bed, it was a dismal failure. Ultimately, the man that signed the death warrant for Roe can’t escape this issue, at least not with weak tea like this.
Pic credit: Larissa Puro.