Tag: criminal prosecution

Donald Trump has made no secret of the fact that he regards his party’s position on reproductive rights as a political liability. He blamed the “abortion issue” for his party’s disappointing showing in the 2022 midterms, and he recently blasted Florida Governor Ron DeSantis’s support for a six-week abortion ban. Trump seems eager to be the Republican who can turn this loser of a political issue into a winner.

And we’ve just gotten a peek at how he plans to do it. Last week, The New York Times reported that Trump has expressed support for the idea of a national ban on abortions after 16 weeks of pregnancy except in the case of rape or incest, or to save the mother’s life.

Anti-abortion activists, of course, don’t think such a restriction goes far enough. Some of Trump’s most important allies—including evangelical leaders and policy advisers—emphatically support a total ban, a position that Trump knows is poisonous. Trump doesn’t want to say anything official about a 16-week ban, the report said, until he’s clinched the nomination, to avoid turning off any hard-core primary voters who favor a total ban.

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After that, embracing a 16-week limit could benefit him in the general election. It would put some distance between himself and the hard-liners in his orbit, while helping him appeal to more moderate voters. And just as important, by making the conversation about gestational limits, Trump and his allies would distract voters from the far more expansive goals of dedicated abortion opponents.

To unpack the 16-week proposal a little: The number is biologically arbitrary, for it bears no relation to fetal viability, as some state limits do. Sixteen is, apparently, just a pleasing number. “Know what I like about 16?” he reportedly said. “It’s even. It’s four months.” Trump and his allies see this as a compromise position, because it’s stricter than Roe v. Wade’s roughly 24-week viability standard, but it still provides a larger window than the six-week limit in Georgia and South Carolina, or the outright bans that conservatives have fought for in 14 states, including Alabama, Texas, and Indiana.

In November, a proposal for a 16-week federal limit could, in theory, be a politically advantageous position for Trump. Almost all available polling suggests that most Americans support legal access to abortion—with some limits. Several countries in Europe already apply a 12- or 15-week limit on terminations, although in practice U.S. state bans are much more restrictive.

Now, at least, Trump will have a response when President Joe Biden attacks him and other Republicans for being too extreme on abortion. “The rule of politics is: When you’re talking generically about abortion rights, the Democrats are doing well, and when you’re talking about the details of abortion—number of weeks, parental consent—Republicans are winning,” Mike Murphy, a longtime Republican strategist (who says he’s not a fan of Trump), told me. Republicans, he said, will be able to put Democrats on the defensive by forcing them to justify abortion after 16 weeks—which would likely involve needing to make more complex arguments about how tests that reveal serious fetal abnormalities or maternal health risks typically take place as late as 20 weeks.

Still, a ban is a ban. Although voters say in polls that they support some kind of abortion limit, at the ballot box, they haven’t. Last year, Glenn Youngkin, who flipped Virginia’s governorship from blue to red in 2021, persuaded several Republican candidates to coalesce around a 15-week abortion ban ahead of state elections in November. The position was meant to signal reasonableness and help turn the state legislature back to Republicans. But the strategy failed miserably: Democrats maintained their state-Senate majority and also flipped control of the House of Delegates.

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“Voters are seeing through the efforts to veil a position as moderate that’s actually an abortion ban,” Yasmin Radjy, the executive director of the progressive organization Swing Left, told me. And Trump’s 16-week position, she believes, would be “a huge miscalculation of where voters are.”

At this point, any Trump endorsement of a national abortion limit is nothing more than strategic messaging—a ploy to win over moderate voters in the general election. Such a measure would require 60 votes in the Senate, which makes it virtually impossible to enact—even if Republicans win back majorities in the House and the Senate. It’s just not happening. Which is why the 16-week proposal is also a diversion.

The question people should be asking is whether Trump will give free rein to the anti-abortion advisers in his orbit, Mary Ziegler, a law professor at the UC Davis School of Law, told me. The big thing those advisers are pushing for is the reinterpretation and enforcement of the Comstock Act. As I wrote in December, activists believe they can use this largely dormant 150-year-old anti-obscenity law to ban abortion nationally because it prohibits the shipping of any object that could be used for terminating pregnancies. The Heritage Foundation’s Project 2025, a 920-page playbook written by a collective of pro-Trump conservatives, urges the next Republican president to seek the criminal prosecution of those who send or receive abortion supplies under the Comstock Act. The 2025 plan also proposes that the FDA should withdraw its approval of the abortion drugs mifepristone and misoprostol.

“Federal bans can’t pass,” one anti-abortion attorney, who requested anonymity in order to comment freely on a matter dear to his political allies, told me—but there’d be no need to try with Comstock on the books. The administration could kick Planned Parenthood out of Medicaid by saying that the women’s-health-care provider violates the act, he suggested. It could launch criminal investigations into abortion funds and abortion-pill distribution networks. Of course, if Trump is interested in doing any of that, he can’t mention it on the campaign trail, the attorney said: “It’s obviously a political loser, so just keep your mouth shut. Say you oppose a federal [legislative] ban, and see if that works” to get elected.

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Some of the authors of Project 2025—Gene Hamilton, Roger Severino, and Stephen Miller—have worked for Trump in the past, and would likely serve as close advisers in a second administration. The idea seems to be that Trump is so uninterested in the technical details of abortion-related matters that he’ll rely on this trusty circle of advisers to shape policy. We saw a similar approach during Trump’s first term, when the president’s senior aides would find ways not to do the extreme, dangerous things Trump wanted and hoped he wouldn’t notice. This time around, if Trump is reelected, his advisers seem likely to circumvent the president in order to accomplish their own extreme goals.

“I hope they’re not talking to him about Comstock,” the attorney said. “I don’t want Trump to know Comstock exists.”

When I reached Severino, who currently works for the Heritage Foundation and wrote the Project 2025 section on abortion policy, he declined to make any specific predictions about the strategy. But his answer hinted at his movement’s aspirations. “All I can say is that [Trump] had the most pro-life administration in history and adopted the most pro-life policy in history,” he said. “That’s our best indicator as to the type of policies that he would implement the second time around.”