Abortion and a second Trump presidency

Ezra Klein has a long and fascinating podcast with Mary Ziegler, a law professor and historian, who is probably the foremost current authority on the history of abortion as a political and legal issue in the USA. Here’s a small piece of it, regarding what might happen during a second Trump administration:

EZRA KLEIN: So, there’s been a lot of reporting about Donald Trump saying, privately, at least, that he thinks maybe he would endorse or he would support a 16-week abortion ban, which is more moderate than what a lot of Republican states have done, more moderate than what a lot of Republicans have done, would be understood, I think, as him sort of moving to his party’s almost left on the issue.

But even if that were true — and he has not come out and done that — there’s still a tremendous amount a Trump administration could do that would sharply constrict abortion access, even if his stated position was a 16-week ban.

So I was reading the Mandate for Leadership, which is this big, long document released by the Heritage Foundation, that is understood widely, given who has written it, as a guide to how a Trump administration might govern if it comes back into power in 2025.

And if you look at the section on the Health and Human Services Department, it begins by saying that under Trump, H.H.S. was dedicated to serving, quote, “all Americans from conception to natural death.” It goes on to say that goal number one is protecting life, and the secretary should pursue a robust agenda to protect the fundamental right to life.

It goes on to say, abortion pills pose a single greatest threat to unborn children in a post-Roe world. It says the F.D.A. should therefore reverse its approval of chemical abortion drugs because the politicized approval process was illegal from the start. It goes on to offer a bunch of other ways it can constrict that.

And so you could very much imagine a scenario in which Donald Trump is running for office on something that gets reported as a more compromised position, right? The kind of thing that people were assuming might happen if the Supreme Court got rid of Roe. But actually, in office, through the administrative state, what is happening is a very, very sharp constriction from where we are now using rule-making and agency authority like that.

MARY ZIEGLER: Yeah, and that’s what I think you see pro-life leaders expecting, right? And ironically, expecting very publicly, in the pages of The Washington Post and New York Times, right? So, Roger Severino, who served in the first Trump administration in a special department of HHS, has told The Washington Post that he fully expects Trump to use executive power to limit access to mifepristone.

It’s interesting, too, that we’re hearing this not just from Roger Severino, but from people like Gene Hamilton, who was one of the authors of the Mandate for Leadership. Hamilton isn’t even really a pro-life figure. He’s best known as Stephen Miller’s number two in the family separation policy and architect of immigration policy in the first Trump administration.

But he, too, has outlined similar plans for limiting access to pills and reviving the Comstock Act that would primarily rely on who is going to be the secretary of Health and Human Services, who’s going to be in the Department of Justice, who is going to be in the F.D.A., rather than who’s going to be in Congress or what voters think. And so, quite clearly, those are the plans the pro-life movement has in mind.

And they’re quite clearly hoping, as Jonathan Mitchell, who represented Trump in one of the disqualification cases from Colorado before the Supreme Court, said, I think some of the pro-life movement are hoping that Trump doesn’t say anything about this until after the election because the idea that he would prefer a 16-week ban I think is a lot more politically palatable than some of these potential exercises of executive power that are on the table.

And the question of whether they’re politically realistic is an interesting one, too. I think some people have pointed to the fact that Trump blames the abortion issue for midterm losses for Republicans, essentially suggesting that it’s not his fault, or it’s not because of his unpopularity. It’s because of the position the G.O.P. has staked out on abortion, that Trump is, in fact, more moderate than his party on abortion.

And that may or may not be true, but the sort of interesting question is how differently Trump would think or act if he can no longer run for re-election, right? Then what are the incentives? Are the incentives to please the base and explore some of these uses of executive power and of the administrative state? Or is it to tack more to the center to please the median voter? And I don’t think you can safely assume that Trump would want to please the median voter when he’s thinking about his post-presidential future, rather than his re-election chances.

You should listen/read the whole thing, but here are a few general points:

(1) Demand for elective abortion in the USA in 2024 is so inelastic that, to this point, all the extreme anti-abortion legislating going on in red states hasn’t produced any discernible decrease in abortion rates nationally — indeed, there may have been slight increase in abortion rates post-Dobbs.

(2) This is in large part a product of technology and political polarization. More than half of abortions in the USA are carried out via abortion pills, which are at least currently difficult or impossible to keep out of red states. Furthermore, blue states have become far more aggressive about protecting abortion rights post-Dobbs than they were prior to the reversal of Roe. So of course the focus on the anti-abortion rights movement is now on restricting or destroying access to abortion pills. There’s a big SCOTUS decision on this coming up this summer.

(3) The democratic process in re abortion rights simply doesn’t work at all in red states, because these are one-party regimes, where gerrymandering and polarization guarantee that Republican office holders are going to be much more concerned about getting primaried by the most extreme radicals in their base than they are about losing a general election to a Democrat.

(4) I have the deepest respect for Mary Ziegler, who is a great scholar, but her reflexive acceptance of the idea that a re-installed Donald Trump would consider the 22nd amendment an insuperable impediment to remaining in office is not warranted by what we know about Donald Trump, the Republican party, and the state of American politics in 2024.