Re abortion: Doesn't repealing Roe v Wade place abortion rights in the remit of the individual states? I read some states were voting on abortion issues as well as the presidential election. Maybe there is a realpolitik answer here but doesn't that now provide a buffer between him and abortion rights?
This is long, detailed and comprehensive on the ways a national abortion ban can take place…if you really care to know.
Remember, even when something is a State law, a Federal law can come over the top of it, as long as SCOTUS does NOT deem it a “States Rights” issue, meaning it is a unique right that a state has the right to decide.
Additionally, Trump will have widespread discretionary powers (see Lincoln in the text) that would require the SCOTUS to reject on appeal by a party with standing that has used the courts to try to overturn it. Thoughts on that happening with this handpicked group???
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“Trump did this,” the
campaign ads for Kamala Harris
declare.
“This” was appointing three Supreme Court justices who helped overturn Roe v. Wade, paving the way for the state abortion bans that have led to often harrowing experiences for many pregnant women denied care.
As seismic as that was, activists on both sides of the debate believe a newly elected President Donald J. Trump could go further to effectively ban abortion nationwide — and abortion opponents have given him the road map.
It is hard to know what on the anti-abortion agenda Mr. Trump would support. He has shifted his public views on abortion so often that it’s hard to say what he believes or wants to do. He has said he wants to “leave it to the states.” More recently, he said he would not sign a federal abortion ban, and would veto one if a Republican-controlled Congress sent it to his desk. He has publicly supported I.V.F., which some anti-abortion groups oppose.
But Mr. Trump would also be under pressure from the anti-abortion groups that have ardently supported him to take other actions that would go much further than the 15-week national bans that congressional Republicans have proposed since Roe was overturned.
These include reversing federal guidance that says even states with bans must allow doctors to provide abortion in cases of medical emergency; using administrative agencies to ban abortion pills; and using his executive powers to achieve the anti-abortion movement’s ultimate goal: recognizing fetal personhood in the Constitution.
Those actions would not require cooperation from Congress, and could play out in the far reaches of the federal bureaucracy by Trump appointees. While any changes would almost certainly be challenged in court, the judges who hear those cases could be Trump appointees, existing or new.
“There are levers that he and his appointees can pull, way short of an abortion ban, which would make abortion much more difficult — if not illegal — in all the states where it’s legal still,” said David S. Cohen, a law professor at Drexel University who has written extensively about federal regulation of abortion.
Those moves could effectively override state abortion rights ballot measures that voters have passed since the court reversed Roe two years ago — and any of the 10 state ballot measures that pass in November.
The easiest and perhaps most consequential move, and the one the anti-abortion movement is pushing hardest, would be enforcing the Comstock Act, which is long dormant but still on the books. That law, enacted in 1873, made it a federal crime to send or receive materials “designed, adapted, or intended” for “obscene” or “abortion-causing” purposes.
Anti-abortion groups have pushed to use the Comstock Act to ban abortion pills. They also say that the law would criminalize the delivery or receipt of medical instruments used in abortion.
Enforcing it, abortion opponents say, would go a long way toward stopping what they see as the murder of a million unborn children each year. “We don’t need a federal ban when we have Comstock on the books,” Jonathan F. Mitchell, an anti-abortion lawyer,
told The New York Times earlier this year. “There’s a smorgasbord of options.”
Mary Ziegler, a law professor at the University of California, Davis, and a historian of abortion, agrees that the act could give Mr. Trump enormous power.
“That’s not what I think the Comstock Act means, but it’s promising as abortion opponents see it, because it doesn’t require voters, it doesn’t require Congress — it just requires the Supreme Court and the executive branch,” Professor Ziegler said. “The 15-week minimum standard is not what the anti-abortion movement wants, anyway. Comstock gets them a lot closer to what they want.”
The way anti-abortion activists interpret Comstock, she said, the act would not allow exceptions for abortions if a woman’s physical or mental health were at risk, or in cases of rape or incest.
And, she added, “Part of what’s exciting to people in the anti-abortion movement about Comstock is that it doesn’t have to stop there.”
As interpreted by anti-abortion lawyers, Professor Ziegler said, the act could be used to criminalize buying or selling medications used in gender-affirming treatment or to prevent H.I.V. infections — which Mr. Mitchell and his colleagues in the anti-abortion movement have tried to restrict.
Mr. Mitchell also helped Mr. Trump with his lawsuit to stay on the ballot in Colorado. If he or other anti-abortion lawyers and judges who have supported Mr. Trump are rewarded with positions in the administration, Professor Cohen said, “even if they never say a word about Comstock, the threat of it goes way up, and the risk goes way up.”
That could cause a chilling effect among abortion providers, much the way doctors in states like Wisconsin, Michigan and Arizona
stopped providing abortions after Roe was overturned because of century-old abortion bans that were still on the books.
“Providers are going to have to sit there wondering if they are going to drop this hammer at any point in time,” Professor Cohen said.
Anti-abortion activists have also drafted a blueprint for how Mr. Trump could use his executive powers to recognize fetal personhood in the Constitution — meaning that abortion at any stage would qualify as murder.
https://forums.bluemoon-mcfc.co.uk/nyt://image/d04d5686-4bf1-5988-a4a7-4a3049552622
One of the ultimate goals of the anti-abortion movement is to establish fetal personhood in the Constitution. But it’s unclear just how far Mr. Trump is willing to go.
Americans United For Life outlined this idea in a 2021 document called the
Lincoln Proposal.
Much as President Lincoln used his constitutional powers to abolish slavery despite the Supreme Court’s affirmation of it in the Dred Scott decision, the group called on Mr. Trump to issue an executive order “recognizing preborn persons as constitutional ‘persons’ entitled to the fundamental human rights of due process and equal protection of the laws” safeguarded in the Fourteenth Amendment.
This is why anti-abortion groups celebrated the mention of the Fourteenth Amendment in the Republican platform this summer, even as the party removed explicit support for a national abortion ban, which is unpopular among voters.
“The pro-life generation wants to make a New Deal with President Trump and the Republican Party,” said Kristan Hawkins, the president of Students for Life, “to ensure that future generations get a chance at life in America, and we stop a weaponized federal government from pushing abortion wherever it can.”
But much depends on how much of an appetite Republicans, including Mr. Trump, have to pursue anti-abortion policies after nearly three years of being hammered on the issue by voters.
Congressional Republicans badly underperformed in the 2022 midterm elections, and since then have tried to distance themselves from the kind of abortion bans they proposed just two years ago — as has Mr. Trump. If they don’t believe they have paid a penalty on Election Day, they might be inclined to help Mr. Trump enact more anti-abortion legislation.
Mr. Trump might decide, as he has said on occasion, that abortion bans have already gone too far. Or, he might feel indebted to the anti-abortion activists who have supported him, and appoint them to key positions.
Tracking Abortion Bans Across the Country
The New York Times is tracking the status of abortion laws in each state following the Supreme Court’s 2022 decision to overturn Roe v. Wade.
The Lincoln Proposal cites the work of Dr. Maureen L. Condic, a Trump appointee to the National Science Board, an advisory panel to the National Science Foundation, who is a neurobiology professor and bioethicist who has long lobbied against abortion rights,
using disputed science. A second term could give other Trump appointees the power to shape the science around abortion, which in turn influences court decisions.
And although
Mr. Trump recently declared himself the “father of I.V.F.,” enacting fetal personhood could endanger in vitro fertilization. Fertility clinics dispose of unused embryos, and some clinics stopped operating temporarily earlier this year in the confusion following an Alabama court ruling that had declared those embryos to be children.
Mr. Trump could also reverse the Biden administration’s guidance
on a federal law known as EMTALA that requires hospitals that receive federal funds to provide patients with stabilizing care. The administration, through its appointees at the Department of Health and Human Services, said that even states that ban abortion have to allow doctors to provide them in cases of medical emergency.
“That would be the first thing to go, because it doesn’t require anything other than their interpretation,” Professor Cohen said. “It didn’t have to go through rule-making, it was just guidance from the department.”
The guidance from the Biden administration was intended to ease what doctors have described as the chaos that has often resulted from state bans, with pregnant women who are miscarrying or in other medical emergencies turned away from hospitals and told they need to get sicker before they can have abortions.
Guidance from the Trump administration might say that there is no circumstance in which abortion is medically necessary —
the argument that many anti-abortion activists make, saying that women should carry pregnancies until the fetus or child dies on its own.
Trump guidance could go further, to say that EMTALA requires hospitals to treat the “unborn child” as a patient and to take measures to save its life, as anti-abortion lawyers have argued before the Supreme Court.
“You could imagine a Trump administration issuing guidance saying that hospitals in blue states could not intervene to do abortions because EMTALA treats the unborn as patient,” Ms. Ziegler said.
Similarly, Mr. Trump could use executive powers to deny Title X funding to Planned Parenthood, as he did in his first administration — a decision that President Joe Biden reversed.
Then there is the Food and Drug Administration. To try to maintain abortion access during Covid shutdowns, the Biden administration allowed abortion pills to be delivered by mail, eliminating a requirement that women visit a clinic or doctor to get the first of two pills.
Anti-abortion activists have sued to reverse that decision. Project 2025, drafted as a blueprint for a second administration but disavowed by Mr. Trump, argues to go further and to revoke the F.D.A.’s approval of one of the pills, mifepristone, which would remove the drug from the market entirely.
The Biden administration has also stepped up enforcement of the Freedom of Access to Clinic Entrances Act, which prohibits “threats of force, obstruction and property damage” to reproductive health clinics. As the number of abortion clinics has declined, the remaining clinics have reported an increase in protesters. Anti-abortion groups argue that the Biden administration has used the law to harass them, and they could push Mr. Trump to halt prosecutions under it.
Of course, if Mr. Trump were to win the election, abortion rights groups would likely be flooded with new donations and would fight any new restrictions in court. But perhaps the biggest legacy of Mr. Trump’s first term was how he shaped the federal courts. He could do so even more in a second term.
At the Supreme Court, Justices Samuel A. Alito Jr. and Clarence Thomas are rumored to be close to retirement, opening up the possibility of a court with a majority of Trump appointees. Among the names on Mr. Trump’s list of potential nominees are abortion opponents including Judge James Ho of the Fifth Circuit Court of Appeals and Senator Josh Hawley of Missouri.
“We all obsessed about judges when the question was, Will they overturn Roe,” Professor Ziegler said. “Once they overturned Roe, we stopped paying attention, but people in the anti-abortion movement didn’t stop paying attention.”
Kate Zernike is a national reporter at The Times.