To see what a second Trump administration would mean for reproductive rights, look to Arizona’s abortion ban, not Trump’s cheap words.
Donald Trump has an abortion problem.
The presumptive GOP nominee boasts an advantage over President Joe Biden on most of today’s most salient issues. In a recent ABC News/Ipsos poll, voters said that they trusted Trump over the president on the economy, inflation, crime, and immigration. Biden, meanwhile, enjoyed a double-digit advantage on only one issue: by 47 points to 35 points, voters said they trusted the president over Trump to handle abortion policy.
It is not hard to see why.
Trump’s presidency left relatively few lasting marks on American public policy. But as he has repeatedly boasted since the Supreme Court’s 2022 Dobbs decision, it was his judicial appointments that enabled the overturning of Roe v. Wade — and thus, the avalanche of abortion bans that followed its demise.
The most recent of these bans might be the most politically significant. On Tuesday, Arizona’s Supreme Court ruled that a 160-year-old law banning virtually all abortions in the state is enforceable. That statute predates Arizona’s existence as a state and was rendered irrelevant by Roe in 1973. For these reasons, the state’s Democratic Governor Katie Hobbs had declined to enforce the ban following Dobbs.
But her state’s high court has now abruptly placed all abortion providers at risk of imprisonment; the law mandates two to five years of incarceration for anyone who aids in an abortion, unless that procedure is necessary to save the life of the pregnant person. In practice, this will shutter clinics across the swing state. And since Republicans control Arizona’s state legislature, it is unlikely that lawmakers will do anything to reverse the law before November, despite its extraordinary unpopularity (in a 2022 poll, 91 percent of Arizonans said abortion should be legal in all or some circumstances).
A referendum on adding abortion rights to Arizona’s state constitution will likely appear on the ballot this November. The state supreme court’s decision is liable to increase both support and turnout for that ballot measure, while increasing the salience of abortion policy in the state — both developments that should aid President Biden’s campaign.
Trump’s abortion problem isn’t limited to Arizona. When Texas forces a woman pregnant with a fatally ill fetus to carry it to term — even at the risk of suffering uterine rupture and infertility — that is a consequence of the Trump presidency. When a 10-year-old rape victim in Ohio must travel across state lines to have an abortion, that is a testament to Trump’s legacy. When Alabama disrupts fertility services by declaring that embryos have the same rights as people, those frozen bunches of cells have Trump to thank.
Trump understands that all this is a major political liability. And on Monday, he tried to address it, releasing a video in which he details his vague — yet ostensibly moderate — new stance on abortion policy. If voters want to know what a second Trump administration would actually mean for abortion rights, however, they’d be better off looking to Trump’s past actions and current alliances, rather than his cheap words.
The mogul avoided taking a clear stance on abortion throughout the 2024 GOP primary. Behind closed doors, he told his advisers that he liked the idea of a 16-week national abortion ban with exceptions for rape, incest, and life of the mother. But in front of the cameras, he prevaricated, saying he could “live with” the procedure being banned nationwide or only in some states, while expressing opposition to Florida’s six-week abortion ban.
Now, with the Republican nomination firmly in his grip, Trump is finally spelling out his official position on abortion — or at least, the line he plans to take into the general election.
“My view is now that we have abortion where everyone wanted it from a legal standpoint, the states will determine by vote or legislation, or perhaps both,” Trump said Monday morning in a video post on his social media platform Truth Social. “And whatever they decide must be the law of the land. In this case, the law of the state.”
The Republican went on to say that “many states will be different” and some will be more conservative than others, but “at the end of the day, this is all about the will of the people.”
In other words, Trump suggested that he does not support a national abortion ban. He did not say precisely what abortion restrictions he would like to see his own home state of Florida implement. Trump did specify that he doesn’t think doctors should be allowed to kill newborn infants (although even in blue states, doctors are already legally prohibited from committing infanticide). And he evinced moral opposition to abortion in “the later months.” But exactly which months qualify as “later,” he didn’t say.
Trump did, however, make clear that he believes that victims of rape or incest — or women at risk of dying in childbirth — should be exempt from all abortion restrictions.
At the same time, the former president told viewers that he is “proudly the person responsible” for ending Roe v. Wade. Perhaps this was meant to remind his supporters on the Christian right that they owe him gratitude, his present complacency about the supposed mass murder of fetuses in blue states notwithstanding. But it was the one massively unpopular note in his carefully calibrated statement. The Biden campaign immediately clipped it.
This said, Trump’s argument against Roe v. Wade rested on the idea that it was legally suspect, not morally wrong. This is not how most conservatives view that decision.
Taken as a whole, Trump’s statement constitutes a sound political gambit. Given the constraints imposed by his coalition and record, “I think abortion policy should be left up to the states, although rape victims should always be able to get an abortion, and newborn babies shouldn’t be executed” is about the most expedient stance that Trump could take. It gestures at the median voter’s discomfort with late-term abortions without committing Trump to either a national ban or any specific state-level week limit.
Ideally, the press would not allow Trump to sustain this strategic ambiguity. The likely GOP nominee is registered to vote in Florida, which will hold a referendum this November on whether to enshrine a right to an abortion until fetal viability (generally, around the 24th week of a pregnancy). Trump has said that he considers his state’s six-week abortion ban too extreme. He should tell voters whether he considers 24 weeks even more radical.
Further, although Trump suggested that he doesn’t think abortion should be banned nationally, he did not say that he would veto a national abortion ban, if one made it to his desk. The media should keep asking what he would do in that circumstance.
Of course, Trump’s word is less trustworthy than an email from a Nigerian prince. Once in office, Trump will face no binding political constraints, as he will be ineligible to run for another term. In the event that Republicans find a way to get a federal abortion ban through Congress, there is every reason to believe Trump will reward the Christian right’s loyalty.
There is cause to doubt that the GOP will have the votes to pass such legislation (doing so would require the party to either abolish the legislative filibuster or assemble a 60-vote Senate majority). But a second Trump presidency would likely encroach on abortion rights nationwide through other means.
As the New York Times reported in February, anti-abortion activists with close ties to Trump’s campaign have developed a wide array of plans for restricting reproductive freedom through executive action.
Today, more than half of all abortions in the United States are induced by pills such as mifepristone. The existence of such drugs makes it more difficult for conservatives to fully stamp out abortion, even in red states. But Republicans believe that existing law gives the executive branch the authority to ban such pills nationwide.
Some aim to achieve this by directing the FDA to rescind its approval of abortion-inducing drugs. Others are eyeing a little-known 1873 law called the Comstock Act. Long rendered a dead-letter statute by Roe, Comstock bans the delivery of “every article or thing designed, adapted, or intended for producing abortion.” Conservative legal scholar Jonathan F. Mitchell — who represented Trump before the Supreme Court last year — has suggested that Comstock bans not only the delivery of abortion pills, but of all the equipment required to conduct an abortion procedure. “We don’t need a federal ban when we have Comstock on the books,” Mitchell told the Times.
Mitchell went on to say that he hoped Trump “doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth. I think the pro-life groups should keep their mouths shut as much as possible until the election.”
Trump’s abortion messaging Monday is consistent with Mitchell’s advice. Voters should know that his administration’s policies would likely be the same.
Update, April 9, 3:02 pm ET: This piece was originally published on April 8 and was updated with information about the Arizona Supreme Court ruling on a law to ban nearly all abortions.
