The Opinions - A Second Trump Term Could Lead to a ‘Backdoor Federal Abortion Ban’

Episode Date: October 30, 2024

With less than a week to go until the most contested election in generations, law professor Mary Ziegler considers what a second term for Donald Trump would mean for abortion rights. In this audio essay, she argues that while the former president may seem indifferent on the campaign trail to tightening abortion laws, there is a real possibility that if re-elected he will seek to appease his base by using his executive power to ban abortions nationwide.This episode originally aired on Feb. 6, 2024. Thoughts? Email us at [e-mail]. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it. My name's Mary Ziegler. I'm a law professor and legal historian. I've written six books on struggles over reproduction and abortion in the United States, and I think we're really at a critical juncture when it comes to the politics of abortion rights today. This election is the most consequential in the past 50 years, because before this, when a Republican was in office, there were other constraints. on what Republicans could do in terms of advancing national restrictions or bans through executive power.

And those constraints are largely gone because Roe v. Wade is no more. So quite simply, we haven't had a precedent for how much a Republican can push to limit access in progressive as well as conservative states. We're living in an unprecedented moment or at least when we haven't experienced in a half century. Trump on the campaign trail has sounded reluctant to embrace a broad abortion ban. Now, I happen to be, for the exceptions, like Ronald Reagan, with the life of the mother, rape, incest. At various points, he's promised that he'll forge a deal on abortion that both Democrats and Republicans will love without really detailing what such a deal would involve. He's boasted on several occasions about being responsible for the demise of Roe v. Wade, but has also cautioned other Republicans that pushing much further, or at least talking, much more about abortion rights is politically unwise.

You have to win elections. Otherwise, you're going to be back where you were, and you can't let that ever happen again. You've got to win elections. So I think all of this has left some voters convinced that Trump has returned to his former position of being indifferent to the abortion issue, or at least unwilling to go further in giving abortion opponents what they want. But I think we can't rule out the possibility that Trump is going to take much more aggressive action on abortion.

At the moment, Trump's incentive is clearly to get elected. Once the election is over, Trump's incentives will be very different. He'll be thinking about his post-presidential future, and that will likely involve pleasing the people who are his most passionate supporters. And those people tend to support the strongest fans on abortion. With over 62 million Americans lost to abortion and millions of women and families wounded, the work for all of us is.

not over. For all of this cohort of people, the current state of affairs is deeply unsatisfying. So much good has happened since the overturn of Roe v. Wade, but we are not done. Our work to build a culture of life is far from finished. Even though other abortion bands in place across a large swath of the United States, in part because it's so easy to circumvent those bands, people can travel. out of state to seek abortions, people can order pills on the mail, and in fact, the best research we have suggests that abortion rates haven't declined at all. And that's supercharged interest in a national ban. There are two broad categories of things President Trump could do on his own, just for starters, that conservatives in his orbit have flagged. One category of proposal involves Mithropristone, a drug used as one of the two pills in medication abortions,

and conservatives have laid out plans to try to take this pill off the market, which of course would affect the way abortion services are offered on states across the country. And a second involves creating essentially a backdoor abortion ban using a 19th century law called the Comstock Act. The Comstock Act is an 1873 obscenity law that bars the mailing of a variety of items deemed obscene, lascivious, lewd, and the like. Anti-abortion crusaders have argued that the statute could be reinterpreted as a ban on abortion, and they point to language in the statute that says, among other things, that it's a crime to mail any item designed, adapted, or intended for producing abortions. So people in the anti-abortion movement argue that this should be used to make it impossible to mail abortion pills,

but not just pills any item used in abortion, because every abortion in the United States takes place with some item placed in the mail. So the idea is that the Comstock Act could be reinvented as a national ban. It's tempting to dismiss the idea of a backdoor federal abortion ban just because it sounds implausible that we'll all be living under a Victorian-era obscenity law

in 2025. And, of course, President Trump's hardly sounded like an enthusiastic supporter of fetal personhood on the campaign trail. So I think it's easy to assume that maybe what we're seeing in terms of plans outlined by conservatives are hopes and dreams rather than anything that we'll actually see fulfilled. Once Trump takes office, he'll have quite different incentives. He won't be able to run for re-election. He'll have reason to want to please the social conservatives who donate it to his political

organizations, who would be the most likely to help secure his post-presidential future. He has a track record of pleasing people and energizing his base more than he has sought to placate the majority of American voters. And that's certainly what anti-abortion groups expect and why they've been reluctant to criticize Trump, despite what he's been saying on the campaign trail. That's because I think they see what he's doing now is a short-term political necessity and they fully believe that he'll deliver for them once given the opportunity. If plans for institutionalizing Trumpism come to fruition, the few people are you. of American reproductive rights may not be up to the voters of each state for much longer. It may be up to Donald Trump. If you like this show, follow it on Spotify, Apple, or wherever you get your podcasts.

This show is produced by Derek Arthur, Sophia Alvarez Boyd, Bischakad, Bichakad, Fiby Lett, Christina Samuoski, and Jillian Weinberger. It's edited by Kari Pitkin, Alison Bruzek, and Annie Rose Strasser. Engineering, Mixing, and Original Music by Isaac Jones, Sonia Herrero, Pat McCusker, Carol Sabarro and Afim Shapiro. Additional music by Amin Sahota. The fact check team is Kate Sinclair, Mary Marge Locker, and Michelle Harris. Audience Strategy by Shannon Busta, Christina Samuiluski, and Adrian Rivera. The executive producer of Times Opinion Audio is Annie Rose Dresser.