roe v. wade

The Trump campaign is reportedly angry, annoyed and scrambling for damage control after the Times ran a frontpage story about Donald Trump’s new position on abortion. Privately, he has said he “likes the idea of a 16-week national abortion ban with three exceptions, in cases of rape or incest, or to save the life of the mother,” the paper reported.

This was a leak, according to Rolling Stone’s reporting on the Trump campaign’s reaction to the Times story. The former president has carefully avoided taking a firm position on abortion, in the belief that Republican-controlled states have gone too far in restricting it or banning it outright. He believes a backlash is “overwhelmingly responsible” for a series of GOP defeats since Roe’s fall in 2022.

The Times said Trump is trying to satisfy “social conservatives who want to further restrict access to abortions and Republican and independent voters who want more modest limits on the procedure.”

Though he often takes credit for the Supreme Court striking down Roe, in 2022, Trump had wanted to wait until after the Republican primaries to talk publicly about his new stance for fear of “alienating social conservatives before he has secured the nomination.” Rolling Stone seems to corroborate that fear. It said the Times report inflamed “some of the anti-abortion movement’s most uncompromising figures, who lashed out at Trump for being insufficiently ‘pro-life.’”

Let’s all take a breath.

First, forget about the idea that Trump is going to alienate “social conservatives who want to further restrict access to abortions.” That’s not going to happen, because, to them, abortion isn’t about abortion. It’s about a woman’s place in society relative to a man’s. It’s about amassing enough power to enforce a rigid social hierarchy, according to which white Christian men are on top, dominating and controlling.

Second, the “anti-abortion movement’s most uncompromising figures, who lashed out at Trump for being insufficiently ‘pro-life’” are not lashing out because he’s gone soft. Abortion isn’t about abortion. It’s not about babies and life. They understand what must be done.

Megachurch pastor Robert Jeffries, a “most uncompromising figure,” told Rolling Stone that when he and Trump last spoke, they agreed a six-week ban, no exceptions, won’t “fly in America today, because the overwhelming majority of Americans are against something that is that ‘extreme.’ But [Trump] also said they are against the ‘extreme’ abortion-on-demand. So he’s clearly trying to get to a position that is staunchly pro-life, but also realistic, given where most Americans are.”

(By the way, “extreme abortion on-demand” is a meaningless term used to create an imaginary middle ground. Abortion happens because people who get them choose them. So, yeah, it’s “abortion on-demand.” The point, however, is making a reasonable position seem extreme.)

To be sure, some “social conservatives” have lashed out against Trump. For instance, Florida Governor Ron DeSantis, before dropping out of the GOP primary, said: “I don’t know how you can even make the claim that you’re pro-life if you’re criticizing states for enacting protections for babies that have heartbeats. If he’s going into this saying he’s going to make the Democrats happy with respect to right to life, I think all pro-lifers should know that he’s preparing to sell you out.”

But are they lashing out about Trump going soft on abortion? Or are they lashing out about the risk they are about to take? If they stick with Trump, and they will, because abortion isn’t about abortion, and if he goes with a policy that promises less than “enacting protections for babies that have heartbeats,” then Trump will reveal to the world that abortion is not about abortion. It’s about amassing enough power.

The Times reported on Trump liking the idea of a 16-week national abortion ban as if it were a middle ground between two factions. But there’s no chance of him losing “social conservatives.” They are getting what they want and there is no comparable candidate. Roe’s fall opened a new space in rightwing politics, after which Republican state officials have invented new and tyrannical ways (I mean that) of using the government to police individual liberty and enforce conformity.

For instance, the Alabama Supreme Court has ruled that embryos produced in vitro (IVF) are children, according to state law, and that parents can sue for the wrongful death of their “children.” The court’s opinion was written in ultra-conservative Christian terms, with virtually no concern for separation of church and state. Fertility clinics around the state have suspended procedures for fear of lawsuits.

Writers like Amanda Marcotte have been saying for years that abortion isn’t about abortion. It’s about power. “They want women to be second class,” she wrote after the ruling. “Forced childbirth is one weapon. So is denying motherhood to others.” But now normal people are starting to see the connection. CNN’s Abby Phillip interviewed an Alabama couple that’s using IVF. “It never occurred to me that people would take the overturning of Roe v. Wade and link it to IVF,” Kelly Belmont said. “At its very core, IVF is trying to create life and build families.”

Trump’s real problem isn’t “social conservatives.” It’s swing voters, respectable white people, who have been siding with Democratic candidates in virtually every election since Roe’s fall. Not only must he convince them that a national ban is reasonable, whatever its details, but also that abortion is about abortion, about babies and life, and not a woman’s place in society relative to man’s. But the toothpaste is already out of that tube, as they said. There’s no putting it back in.

On Monday, I recommended putting “democracy is on the ballot” in the background of the 2024 election and putting in the foreground concrete objectives – namely, abortion rights – that can only be achieved via democratic politics. My point was about campaign messaging by Democratic candidates, as if the choice were theirs.

But circumstances have a way of changing things.

The Texas Supreme Court ruled last week that a pregnant woman, whose baby had virtually no chance of surviving due to a genetic disorder, did not qualify for an exception to the state’s abortion ban. (She fled the state to get the procedure.) Meanwhile, the US Supreme Court accepted a case that could restrict access to mifepristone, the so-called abortion pill. And next year, voters in nearly a dozen states could enshrine abortion rights through constitutional amendments. These include states that will be pivotal to the presidential election.

Given this, my recommendation to put abortion rights in the foreground, and “democracy is on the ballot” in the background, seems shortsighted. The wheels are already in motion. Whether Joe Biden and the Democrats insist that “democracy is on the ballot” is probably beside the point, because you know what? Abortion rights sure are.

The ruling by the high court of Texas exposed a major weakness in antiabortion politics – that there was never a genuine intention of allowing for medical exceptions to total or near-total abortion bans. “The main takeaway here is that these exceptions are really meaningless in practice, especially when you have political actors who are dedicated to going after abortion,” said Cathren Cohen, an attorney with the UCLA Law Center on Reproductive Health, Law and Policy.

The Texas case is certainly the first of many. Pregnant women across antiabortion states are going to challenge medical exceptions in increasing numbers. The buildup will probably spill over into the Supreme Court’s ruling in the mifepristone case, which is expected in June of next year, right when the presidential election is getting hot.

Beneath it all is a groundswell of activity to put abortion rights in front of voters in ballot initiatives. The objective is protecting access by way of state constitutional amendments. Proponents beat attempts to strip abortions rights in Kansas and Kentucky. They succeeded in passing constitutional amendments in Michigan, California, Vermont and Ohio. Next up in abortion-rights protections are Maryland and New York with the possible inclusion of Arizona, Nevada, Colorado, Montana, Nebraska, Florida, Missouri, Arkansas and South Dakota.

Donald Trump and the Republicans should be worried. The thing about these ballot initiatives is that they motivate people to get educated, participate, contribute and vote – ultimately to the benefit of the presidential candidate who is most aligned with the cause.

In 2004, when more than a dozen states asked voters to approve laws banning same-sex marriage, turn out was huge compared to states that did not offer referendums. According to numerous studies, these ballot measures helped George W. Bush get reelected, because they mobilized voters in ways that ordinary campaign politics didn’t.

I might be right in saying that “democracy is on the ballot” should be put in the background of the 2024 presidential election. But it’s already in the background, and effective messaging had nothing to do with it.

The fall of Roe has radicalized people who would not normally act radically. It has mobilized them in ways unseen in decades. And it is a bipartisan radicalization. As Laura Chapin, a Democratic strategist who specializes in abortion, told me, the antiabortionists in the Republican Party are far behind their own supporters on this.

“Republican and independent voters have always been ahead of Republican politicians on this, because it fundamentally comes down to the value of keeping government and politicians out of your private business, something most people support regardless of party ID.”

JS: Can you explain, in legal and political terms, why exceptions to abortion bans, like the one in Texas, don't seem to allow for exceptions?

LC: Because, as the folks at Patient Forward put it, you can't legislate away bad pregnancy outcomes. Medical science doesn't work that way, and no doctor is going to take the risk of jail time in the hopes the courts will look benevolently upon their providing an abortion.

A 13-year-old girl in Mississippi gave birth, because even though that state's ban had a rape exception, there were no providers left in the state and no legal means for her to obtain an exception in any event.

Exceptions to abortion bans are predicated on the political judgment that an abortion has to be earned – that if the person has been traumatized enough, then they have earned the right to an abortion. If they haven't, however, they should be forced to give birth.

JS: I find it stunning when antiabortionists say they don't want abortion to be adjudicated democratically. One of them told Politico: "We don’t believe those rights should be subjected to majority vote.” Is it just me?

LC: Abortion rights and voting rights are inherently tied together. It's inherently undemocratic to block a vote on an issue that you know you're probably going to lose. Gerrymandering is how red states pass unpopular abortion bans, and the Supreme Court itself overturned Roe thanks in part to a seat Donald Trump and Mitch McConnell stole.

JS: Some antiabortion states are talking about preventing people from leaving to have abortions. Does the abortion crackdown trend have the potential of becoming a freedom of movement controversy?

LC: Whether or not they're broadly legal, the point of these state laws is to intimidate people who already face barriers to abortion care from seeking help. It's to create a climate of fear – literally to scare someone into thinking that if they get in a car and drive to New Mexico or Colorado, they'll have a trooper following them.

JS: SCOTUS has accepted the mifepristone case. Any predictions?

LC: At this point, they're looking at the expansion of mifepristone access, not the approval itself. As Jessica Valenti put it, "the legality of mifepristone shouldn’t be at risk, but access and availability of the medication is." But any restrictions on access make it harder for people in abortion ban states to access care, which again is the point of the antiabortion movement - to create a climate of fear and intimidation.

JS: I have a pet theory. It's that swing voters switched from lean-R to lean-D after SCOTUS struck down Roe. Is there anything to that?

LC: I have some insight into this as a veteran of abortion ban ballot measures in Colorado dating back to 2008 – and we've won every time thanks not just to Democrats but to “unaffiliateds” (the largest voting bloc here) and Republicans voting in support of keeping access.

Republican and Independent voters have always been ahead of Republican politicians on this, because it fundamentally comes down to the value of keeping government and politicians out of your private business, something most people support regardless of party ID.

And as Republican politicians are now finding out, you can absolutely have an abortion for a wanted pregnancy and being denied one for politics has horrifying and heartbreaking consequences.