The Republican candidate wants to seem moderate on abortion. His would-be advisers have other ideas.
Donald
Trump has made no secret of the fact that he regards his party’s position on
reproductive rights as a political liability. He blamed the “abortion issue”
for his party’s disappointing showing in the 2022 midterms, and he recently
blasted Florida Governor Ron DeSantis’s support for a six-week abortion ban.
Trump seems eager to be the Republican who can turn this loser of a political
issue into a winner.
And
we’ve just gotten a peek at how he plans to do it. Last week, The New York
Times reported that Trump has expressed support for the idea of a national ban
on abortions after 16 weeks of pregnancy except in the case of rape or incest,
or to save the mother’s life.
Anti-abortion
activists, of course, don’t think such a restriction goes far enough. Some of
Trump’s most important allies—including evangelical leaders and policy
advisers—emphatically support a total ban, a position that Trump knows is
poisonous. Trump doesn’t want to say anything official about a 16-week ban, the
report said, until he’s clinched the nomination, to avoid turning off any
hard-core primary voters who favor a total ban.
After
that, embracing a 16-week limit could benefit him in the general election. It
would put some distance between himself and the hard-liners in his orbit, while
helping him appeal to more moderate voters. And just as important, by making
the conversation about gestational limits, Trump and his allies would distract
voters from the far more expansive goals of dedicated abortion opponents.
To
unpack the 16-week proposal a little: The number is biologically arbitrary, for
it bears no relation to fetal viability, as some state limits do. Sixteen is,
apparently, just a pleasing number. “Know what I like about 16?” he reportedly
said. “It’s even. It’s four months.” Trump and his allies see this as a
compromise position, because it’s stricter than Roe v. Wade’s roughly 24-week
viability standard, but it still provides a larger window than the six-week
limit in Georgia and South Carolina, or the outright bans that conservatives
have fought for in 14 states, including Alabama, Texas, and Indiana.
In
November, a proposal for a 16-week federal limit could, in theory, be a
politically advantageous position for Trump. Almost all available polling
suggests that most Americans support legal access to abortion—with some limits.
Several countries in Europe already apply a 12- or 15-week limit on
terminations, although in practice U.S. state bans are much more restrictive.
Now, at
least, Trump will have a response when President Joe Biden attacks him and
other Republicans for being too extreme on abortion. “The rule of politics is:
When you’re talking generically about abortion rights, the Democrats are doing
well, and when you’re talking about the details of abortion—number of weeks,
parental consent—Republicans are winning,” Mike Murphy, a longtime Republican
strategist (who says he’s not a fan of Trump), told me. Republicans, he said,
will be able to put Democrats on the defensive by forcing them to justify
abortion after 16 weeks—which would likely involve needing to make more complex
arguments about how tests that reveal serious fetal abnormalities or maternal
health risks typically take place as late as 20 weeks.
Still, a
ban is a ban. Although voters say in polls that they support some kind of
abortion limit, at the ballot box, they haven’t. Last year, Glenn Youngkin, who
flipped Virginia’s governorship from blue to red in 2021, persuaded several
Republican candidates to coalesce around a 15-week abortion ban ahead of state
elections in November. The position was meant to signal reasonableness and help
turn the state legislature back to Republicans. But the strategy failed
miserably: Democrats maintained their state-Senate majority and also flipped
control of the House of Delegates.
“Voters
are seeing through the efforts to veil a position as moderate that’s actually
an abortion ban,” Yasmin Radjy, the executive director of the progressive
organization Swing Left, told me. And Trump’s 16-week position, she believes,
would be “a huge miscalculation of where voters are.”
At this
point, any Trump endorsement of a national abortion limit is nothing more than
strategic messaging—a ploy to win over moderate voters in the general election.
Such a measure would require 60 votes in the Senate, which makes it virtually
impossible to enact—even if Republicans win back majorities in the House and
the Senate. It’s just not happening. Which is why the 16-week proposal is also
a diversion.
The
question people should be asking is whether Trump will give free rein to the
anti-abortion advisers in his orbit, Mary Ziegler, a law professor at the UC
Davis School of Law, told me. The big thing those advisers are pushing for is
the reinterpretation and enforcement of the Comstock Act. As I wrote in
December, activists believe they can use this largely dormant 150-year-old
anti-obscenity law to ban abortion nationally because it prohibits the shipping
of any object that could be used for terminating pregnancies. The Heritage
Foundation’s Project 2025, a 920-page playbook written by a collective of
pro-Trump conservatives, urges the next Republican president to seek the
criminal prosecution of those who send or receive abortion supplies under the
Comstock Act. The 2025 plan also proposes that the FDA should withdraw its
approval of the abortion drugs mifepristone and misoprostol.
“Federal
bans can’t pass,” one anti-abortion attorney, who requested anonymity in order
to comment freely on a matter dear to his political allies, told me—but there’d
be no need to try with Comstock on the books. The administration could kick
Planned Parenthood out of Medicaid by saying that the women’s-health-care
provider violates the act, he suggested. It could launch criminal
investigations into abortion funds and abortion-pill distribution networks. Of
course, if Trump is interested in doing any of that, he can’t mention it on the
campaign trail, the attorney said: “It’s obviously a political loser, so just
keep your mouth shut. Say you oppose a federal [legislative] ban, and see if
that works” to get elected.
Some of
the authors of Project 2025—Gene Hamilton, Roger Severino, and Stephen
Miller—have worked for Trump in the past, and would likely serve as close
advisers in a second administration. The idea seems to be that Trump is so
uninterested in the technical details of abortion-related matters that he’ll
rely on this trusty orbit of advisers to shape policy. We saw a similar
approach during Trump’s first term, when the president’s senior aides would
find ways not to do the extreme, dangerous things Trump wanted and hoped he
wouldn’t notice. This time around, if Trump is reelected, his advisers seem
likely to circumvent the president in order to accomplish their own extreme
goals.
“I hope
they’re not talking to him about Comstock,” the attorney said. “I don’t want
Trump to know Comstock exists.”
When I
reached Severino, who currently works for the Heritage Foundation and wrote the
Project 2025 section on abortion policy, he declined to make any specific
predictions about the strategy. But his answer hinted at his movement’s
aspirations. “All I can say is that [Trump] had the most pro-life
administration in history and adopted the most pro-life policy in history,” he
said. “That’s our best indicator as to the type of policies that he would
implement the second time around.”
***Elaine
Godfrey is a staff writer at The Atlantic.
https://www.theatlantic.com/politics/archive/2024/02/donald-trump-abortion-limit-republicans/677540/