National Abortion Ban Is a Trap for 2024 Republicans

President Donald Trump speaks at the 47th March For Life rally on the National Mall, January 24, 2019. Photo: Mark Wilson/Getty Images

You’d figure the anti-abortion movement would be pretty happy with the wave of restrictions on reproductive rights that states have enacted since the U.S. Supreme Court reversed Roe v. Wade last June and grateful to the man who made it all happen with his Supreme Court appointments, Donald Trump. But no: Two of the more strident groups fighting legalized abortion, the Student B. Anthony List and Students for Life, have bashed Trump for refusing to back a federal abortion ban that would take away states’ prerogative to set reproductive-rights policy — though there’s little chance of a federal ban actually being enacted anytime soon.

In April, Team Trump put out a statement blandly repeating the standard pre-Dobbs position of virtually all Republicans. Trump campaign spokesman Steven Cheung said Trump believes that the Supreme Court “got it right when they ruled this is an issue that should be decided at the State level.”

“Republicans have been trying to get this done for 50 years, but were unable to do so,” the statement continued. “President Trump, who is considered the most pro-life President in history, got it done. He will continue these policies when reelected to the White House. Like President Reagan before him, President Trump supports exceptions for rape, incest and life of the mother.”

SBA List’s Marjorie Dannenfelser was having none of it.

“President Trump’s assertion that the Supreme Court returned the issue of abortion solely to the states is a completely inaccurate reading of the Dobbs decision and is a morally indefensible position for a self-proclaimed pro-life presidential candidate to hold,” she said in a statement. “Life is a matter of human rights, not states’ rights. Saying that the issue should only be decided at the states is an endorsement of abortion up until the moment of birth, even brutal late-term abortions in states like California, Illinois, New York and New Jersey.”

Students for Life’s Kristan Hawkins was even blunter:

For reasons that are not entirely clear, Dannensfelser put down as a litmus test for her support a federal ban on abortions after 15 weeks of pregnancy, a standard that would not interfere with the 90-plus-percent of abortions conducted in the first trimester (though states would be free to impose more draconian restrictions, at least in the legislation sponsored by South Carolina Senator Lindsey Graham). But whether this idea is good or bad from the point of view of the forced-birth lobby, it’s a questionable demand for presidential candidates for the simple reason that it’s just not happening any time soon.

Aside from the very real constitutional questions about Congress’s authority to overrule state abortion laws in a post-Roe environment, a federal abortion ban (much like a federal abortion-rights statute) would go absolutely nowhere without trifecta control of the federal government by the party proposing the legislation. That’s possible after 2024, but hardly a cinch. Even with a trifecta, passage of a ban would require 60 Senate votes, unless you think Republicans will abandon their recently adamant defense of the Senate filibuster to get this one piece of legislation done. The trouble is a lot of Senate Republicans are on record agreeing with Trump that abortion policy is no business of Congress’s, as Politico reports:

[Senior Republican] John Cornyn of Texas doesn’t see a need for Congress to weigh in on abortion policy in a post-Roe world. And GOP No. 3 John Barrasso said simply that “states ought to make the decision.”

… Graham’s 15-week ban bill drew only nine co-sponsors last year. … That relatively scant support shows how few Republicans want to touch the issue since Roe got overturned.

And fear of the abortion issue has only gotten more intense in Washington since the midterms. It’s so much easier for Republicans in or running for federal office to just intone “state issue” and go back to talking about inflation or crime or Hunter Biden.

So the effort of anti-abortion groups to use the Republican presidential primary as a way to force the GOP to endorse a hopeless and very unpopular position on the subject is understandable but perilous. For one thing, Trump is not alone in rejecting a federal ban. It’s Nikki Haley’s position as well. And while anti-abortion activists were pleased by Ron DeSantis’s recent decision to sign a ban on abortions after six weeks of pregnancy, he’s been silent on a federal ban. Only Mike Pence pretty clearly backs one. Meanwhile Tim Scott, who is competing with Pence for hard-core conservative evangelical support, has tied himself in knots on hypothetical federal bans. It’s pretty clear would-be Republican presidents don’t want to put themselves in a general-election hole with an unpopular abortion position that’s not even vaguely feasible.

We’ll soon see if the anti-abortion squeeze play works; if it doesn’t have an effect on the presidential field in evangelical-heavy Iowa, it probably won’t later on. But for the foreseeable future, reproductive rights will still depend on accidents of geography and state politics. A national abortion ban is not on the immediate horizon.