With Trump, the future of reproductive rights is on the ballot 

Supporters of Joe Biden have had a bad couple of weeks. Recent polls show Donald Trump leading in the race for president and the report of special counsel Robert Hur made headlines when it labelled Biden an “elderly man with a poor memory.” 

But in the last few days, Trump has drawn negative attention to himself, effectively easing the Biden campaign off the ropes — first by talking openly about letting the Russians do “whatever the hell they want” in Europe, then with remarks he made behind closed doors about abortion. 

On Friday, the New York Times broke the story about those remarks. Trump, the Times reported, “has told advisers and allies that 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 endorsement of a national abortion ban could be a game-changer in the November election. Just as the effort to overturn Roe v. Wade mobilized Republican voters for decades, the prospect of such a ban should mobilize millions of people who, whatever their doubts about Biden, want to preserve reproductive rights. 

Trump’s latest statement marks just another twist and turn in his evolving position on abortion.

Twenty-five years ago, he called himself “very pro-choice.” He said that “I hate the concept of abortion. … But still, I just believe in choice.” 

In 2016, during his first presidential campaign, Trump changed his tune, saying he was “pro-life” and denouncing abortion rights. The real estate mogul went as far as to say that if a woman ignored a ban on abortion the government might impose, she should be subject to “some sort of punishment.”  

Reacting to a firestorm of criticism, as the New York Times then explained, Trump “recanted his remarks.” If abortion were disallowed, he said, “the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case, as is the life in her womb.”  

But he persisted in courting the anti-abortion vote. During his 2020 campaign he became the first sitting president to address the annual March for Life in person, telling a large audience of anti-abortion activists that “Unborn children have never had a stronger defender in the White House.” 

Strangely, since the Supreme Court overturned Roe v. Wade in the summer of 2022, as the Times observes, “Mr. Trump has studiously avoided taking a clear position on restrictions to abortion.” 

On the one hand, Trump has claimed credit for overturning Roe v. Wade. Last May, almost a year after the Supreme Court’s decision, he posted on Truth Social that “After 50 years of failure, with nobody coming even close, I was able to kill Roe v. Wade, much to the ‘shock’ of everyone.” 

In typical Trumpian fashion, he said that the move “for the first time put the Pro-Life movement in a strong negotiating position over the Radicals that are willing to kill babies even into their 9th month, and beyond. Without me there would be no 6 weeks, 10 weeks, 15 weeks, or whatever is finally agreed to. Without me the pro-Life movement would have just kept losing.” 

On the other hand, when pushed to say whether he favors restrictive abortion bans, he has bobbed and weaved, bemoaning the fact that Republicans “speak very inarticulately” about reproductive rights and have pursued “terrible” state-level restrictions that could alienate much of the country. 

In September, when he was asked what he would do about reproductive rights if he were returned to the White House, all Trump would say was that “if he is reelected he will try to broker compromises on how long into pregnancies abortion should be legal and whether those restrictions should be imposed on the federal or the state level.” 

“I would,” Trump promised, “sit down with both sides and I’d negotiate something and we’ll end up with peace on that issue for the first time in 52 years.” 

Now, as the Times notes, Trump is “acutely aware of his own vulnerability: He appointed the three justices who enabled that decision, a fact he has publicly claimed credit for in several settings. Those statements have already been included in ads, and Democrats plan to spend hundreds of millions of dollars to remind voters of that fact.”  

Recent polls have shown, as the columnist Jennifer Rubin observes, that “support for Roe v. Wade has never been higher…. 6 in 10 voters oppose the court’s action, including ‘nearly 80% of female voters ages 18-49, two-thirds of suburban women, 60% of independents and even a third of Republican voters.” 

Polls also show that “more voters than ever say they will vote only for a candidate who shares their views on abortion, with a twist: While Republicans and those identifying as ‘pro-life’ have historically been most likely to see abortion as a litmus test, now they are less motivated by it, while Democrats and those identifying as ‘pro-choice’ are far more so.” 

These poll results help explain why even in red states like Kansas, Kentucky and Ohio, pro-choice forces have won significant electoral victories since the Dobbs decision. 

Meanwhile, Trump’s allies are already planning ways that Trump can restrict abortion rights through executive action. They hope to weaponize existing laws and administrative agencies to make life difficult for all women seeking abortions. 

Trump hopes that the 16-week ban will, as the Times reports, “satisfy both social conservatives who want to further restrict access to abortions and Republican and independent voters who want more modest limits on the procedure.” 

Not surprisingly, the Biden campaign jumped on Friday’s news, reaching out to members of the press to brand Trump’s latest musings about abortion as “dangerous” and “extreme.” As a Biden statement put it, “Now, after being the one responsible for taking away women’s freedom, after being the one to put women’s lives in danger, after being the one who has unleashed all this cruelty and chaos all across America … Donald Trump will ban abortion nationwide.” 

Perhaps Trump’s statement about a national abortion ban was a bit of a false flag operation. It may have been designed to send a signal to his pro-life supporters that he shares their view that the Dobbs decision was, as Hadley Arkes puts it, merely “the end of the beginning” in the effort to ban abortion. But because Trump has not yet gone public about the 16-week abortion ban, it also gives him plausible deniability and the chance to brand the Times report “fake news.”  

In the end, people who want to preserve reproductive choice in this country cannot afford to ignore or discount Trump’s musings about a nationwide abortion ban as just another thing to be taken seriously but not literally. Instead, they should take counsel from Masha Gessen, who says that we can only survive assaults on our rights if we “believe the autocrat. He means what he says.” 

If Trump is re-elected, he will not rest with Dobbs. He will go after reproductive rights everywhere.  

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.