There can be no question that Alexandra DeSanctis has it thoroughly — and distressingly — right when she sees a major receding from the pro-life movement on the part of Donald Trump and his running mate J. D. Vance. It cannot be a matter of inadvertence that the Republican platform no longer calls for a constitutional amendment to protect the nascent life in the womb. Nor that the platform steers clear of any legislating at the national level, even for the sake of protecting the child who survives an abortion. Trump has gone out of his way to read the decision of the Supreme Court in the narrowest, most implausible way, of returning matters solely to the states. The Court had returned the matter to the voters in the political arena, and that includes the people who would vote for measures at the federal level, as in barring abortions in military and diplomatic outposts or in hospitals receiving federal aid.
To make matters worse, as DeSanctis points out, Trump has been tutored to give a thoroughly false account of the decision of the Court in the case of mifepristone. He claims that the Court cast its approval over the chemical abortions when the Court did no such thing. The justices simply contrived a way of avoiding the case by denying that the doctors and nurses did not have the standing to bring the case. Still, Justice Alito did take a moment to remind people that it was, after all, against the law to send abortifacients through the mail and interstate commerce!
All of this painfully true, and yet we are deceiving ourselves if we fail to see where the heavy fault lies in this situation, and it’s not entirely with our bumbling political class. Trump and Vance are dealing with a bad hand that has been dealt them by the Supreme Court. Indeed, to talk about the setbacks and crises now unsettling the pro-life movement without mentioning the Court is, as the old line used to go, like “playing Hamlet without the first gravedigger.” Why did the case on mifepristone take the strange shape it did, virtually inviting Trump to do his willful misreading?
The most striking thing about the holding of the Court in the Dobbs case is that it slew the Great White Whale of Roe v. Wade, while going out of its way to say nothing about the most central and decisive point in the case: the standing of the unborn child in the womb as a small human being, who would claim the protections that would flow to any other human being under the laws. If that simple point had been made, the case on mifepristone would have been transformed: The arguments could not have centered, as they did, on the “safety” of the drug for the women who were taking it. For there would have been a second person in the picture, one whose “safety” was not being gauged, for it was the very purpose of the drug to extinguish that other, small person.
Fifty years ago, the lawyers for Texas in Roe v. Wade drew on the most updated findings from embryology, woven with principled reasoning, to show that the nascent life in the womb had never been anything other than a human being from its very first moment, and never merely a part of its mother. The dissenters in Roe never bothered to draw on that rich material. Forty-nine years later, in the Dobbs case, the conservative majority would still not draw up on that material to register that simple, objective truth that remains the heart of the problem. Justice Alito showed in his thoughtful opinion for the Court that there was no principled ground on which to treat that life in the womb as anything other than a human life. And yet he notably held back from drawing the conclusion that sprang from that argument. That holding back made it possible for Justice Kavanaugh to join the majority in concurrence to offer the embarrassing observation that “many pro-life advocates forcefully argue that a fetus is a human life” — forcefully argue as though there has been no long-settled, empirical truth on this matter, found in all of the textbooks of embryology. That was the price that Samuel Alito had to pay in order to secure the fifth vote to overrule Roe v. Wade.
The dissenters in Dobbs were indecorous enough to tell the embarrassing truth here: that “the majority takes pride in not expressing a view ‘about the status of the fetus,’” — that “the state interest in protecting fetal life plays no part in the majority’s analysis.” After all, conservative jurisprudence had always taken as the major wrong in Roe v. Wade that the text of the Constitution had made no mention of a right to abortion. And therefore federal judges were not in a position to proclaim any rights to abortion emanating from the Constitution.
In the aftermath of the Dobbs case, many women seem to have been seized with the panic that something once thought to be valuable for them was about to be taken away, and the result has been that the numbers of abortions has actually surged again to over a million for the year. For the justices who have given us “conservative jurisprudence,” that is no doubt regrettable; but after all, they had never promised to do anything more than say that the right to abortion is just nowhere to be found in the Constitution.
The conservative justices then returned the matter of abortion to the political arena, to a culture that had been tilted radically against the pro-life movement. And they returned it to a Republican political class that had always been skittish and nervous in dealing with the issue. Donald Trump has been nothing but a confirmed marketer, and when abortions surge to over a million a year, Trump takes it as a blaring sign that people want them. Never once has he taken the moment to point out to his listeners that all of this talk about 15 weeks or six weeks was really talk about when to protect a small human being about to be killed. He has never stopped to explain to the public — or to think through for himself — just why he thought it a “terrible thing” that Governor DeSantis would protect a child six weeks in his mother’s womb. Samuel Alito had teed the matter up. He left it to people in elective office, or to other federal judges, to take the next step and draw out the conclusion entailed by his argument, that abortion involves the killing of a small human being. But after Alito set the matter up in the most thoughtful way, whom did he really expect to summon the wit and nerve to explain that point? Donald Trump?
Was Trump to pay the political price and take it upon himself to explain to people wanting mifepristone that they really wanted to kill unborn babies? His task would have been notably transformed if the Supreme Court had been willing to put that simple, resonating moral truth into place. It would no longer be a matter that Trump would need to explain. But now Vance had to assure the public that he and Trump are not about to ban the method that accounts for about 63 percent of the abortions in the country. Without the Supreme Court preparing the moral ground or providing the moral cover, Vance could have kissed away the election if he had declared that a new administration would of course bar the shipment of this poison through the mail.
Trump and Vance are playing, then, the hand they had been dealt after the Supreme Court threw the issue back into the political arena, with no preparation, and with the fallout still raining down on us. The Republicans have simply retreated to a position that they’ve seen widely supported in the polls: that most people would accept limits on abortion late in the pregnancy, even at the stage of 15 weeks, the limit that the Supreme Court had sustained in the Dobbs case.
That may be enough to get through the day — and carry the election. But the critical sign will be with the people who are put in place. If Roger Severino, or someone of his character, is put in his former place at the Civil-Rights Division of Health and Human Services, we can probably expect an administration set to using every lever at hand to withhold the support and promotion of abortion. If the formidable Jonathan Mitchell came in from Texas, we might see the steps put in place to resume enforcing the Comstock Act and barring the shipment of abortifacients across state lines.
We might even see a willingness to act, without fanfare, and restore the penalties to the federal bill that barred the killing of a child born alive, surviving an abortion. Three times over the last nine years the Democrats in the House have voted virtually unanimously in opposing that bill, even though the original bill had been enacted in 2002 when the Democrats were in control of the Senate. That is surely the most embarrassing point to raise against Kamala Harris: Would she really stand with her party now in accepting no limits at all on abortion, even when a child is born alive?
And yet, as terminally embarrassing as this issue is for the Democrats, Trump has made a clear decision to avoid mentioning it. He has been willing to point out that many Democrats will withhold care from the child born alive, but he mentions only former governor Ralph Northam of Virginia, who had taken that position. But why should he forego the delicious temptation to tag Harris with the position of her party in Congress? The only plausible explanation is that he wants to hold back from any national legislation at all, including the move simply to restore the penalties for a federal law already on the books.
If Trump takes that stand, that will be the decisive sign that the Republican Party, under Trump, has quite ripped itself away from the pro-life movement. But let us wait for the din of the election to subside, and see just whose hands are on the levers.