In May of this year, while Donald Trump was still campaigning as a Republican presidential candidate, the now president-elect sat down for an interview with MSNBC's Chris Matthews and was asked point blank if he felt abortion should be punished. After dodging any formal answer, Trump finally replied, “There has to be some form of punishment [for the woman].” But like many anti-choice critics asked the same question, Trump failed to specify what that punishment would be—or, given the protection of abortion rights under the Supreme Court’s historic Roe v. Wade ruling, how he planned to prosecute women who choose to terminate their pregnancies. Under Trump's presidency, the future of abortion and reproductive rights is similarly uncertain.
Faced with criticism from both sides of the political spectrum, the former reality star with no political experience walked back his comments in a hastily issued statement. “If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman,” he said. “The woman is a victim in this case as is the life in her womb. My position has not changed—like Ronald Reagan, I am pro-life with exceptions.”
Those exceptions are rape, incest, and health of the mother. During his post-election 60 Minutes interview with Leslie Stahl, Trump doubled down on his stance. “Here’s what’s going to happen. I’m pro-life. The judges will be pro-life,” he said. “Having to do with abortion—if it ever were overturned, it would go back to the states.” The “judges” in question here are likely his picks for a Supreme Court nominee to fill the seat of the late Justice Antonin Scalia—who, it’s worth noting, was himself anti-choice. Critics of Trump’s anti-choice agenda have voiced concern about his potential nominees for a Supreme Court justice (and rightfully so, as he just appointed a white nationalist as White House Chief Strategist). California Sen. Dianne Feinstein will serve as senior Democrat on the Judiciary Committee, and has said she will “pay very close attention to proposed nominees to ensure the fundamental constitutional rights of Americans are protected.”
“When President-elect Trump is willing to support responsible policies and nominees, I’ll hear him out, but this committee has a vital role to protect the Constitution and scrutinize policies, senior officials and judges very carefully, and that’s what we intend to do," Feinstein said in a statement. "We simply won’t stand aside and watch the tremendous successes achieved over the past eight years be swept away or allow our nation’s most vulnerable populations to be targeted."
We simply won’t stand aside and watch the tremendous successes achieved over the past eight years be swept away or allow our nation’s most vulnerable populations to be targeted.
Trump has flip-flopped on his abortion position, despite his claims to the contrary. As ABC reported, Trump hosted a pro-choice fundraiser in 1989, though he didn’t attend. Ten years later during a Meet the Press interview with Tim Russert, Trump described his position as "very pro-choice” and added that while he hated the concept of abortion, he felt it was a woman’s right to choose. It wasn’t until 2011 that Trump made his anti-choice shift—amid, as ABC notes, rumors that he was planning to run for president. But it’s his most recent comments coupled with the evangelically-driven policy making of his running mate Mike Pence that are most troubling to pro-choice advocates.
Nelson Tebbe, professor at Brooklyn Law School and visiting professor at Cornell Law School, told Complex that while there is a chance Trump could push his anti-choice agenda with a conservative-leaning Supreme Court, it’s more complicated than filling a single seat—specifically if all of the current justices remain for the next five years.
“Even if Trump were able to appoint a Supreme Court Justice who would vote to overturn Roe v. Wade, there would still be five votes on the court who retain the decision, presumably, as long as Justice Kennedy remains on the court and the other liberal justices who support Roe v. Wade also remain on the court," he explained. "So the prospects of overturning Roe v. Wade in the near term is not very good.”
Pro-choice advocates understand that overturning Roe v. Wade with a single seat isn't likely, but the pending retirement of current justices has left-leaning policy makers nervous. Tebbe noted that Justice Ginsburg is 83 years old and underwent cancer treatment a few years ago, though her health seems to be stable. And Justice Kennedy is 80 years old and could also potentially retire. “I think besides those two, Justice Breyer is the one whose name is most frequently put forward as someone who might retire or vacate their position during the next four years,” Tebbe said. “If that happens and President Trump is able to name a second person in the Supreme Court who also will vote to overturn Roe v. Wade, then the decision, in theory, can become vulnerable.”
But even if Trump can't overturn Roe v. Wade, as he and his fellow pro-life VP have promised, pro-choice advocates are concerned about the lengths to which women seeking abortions will have to go to receive proper abortion care. With a majority Republican House and Senate, many are concerned that there will be fewer and less accessible clinics, making it exponentially more difficult for women to receive necessary (and sometimes life-saving) reproductive health care.
ence infamously proposed a bill to defund Planned Parenthood of all of its federal funding, a move that president of Planned Parenthood Cecile Richards described as “the most dangerous legislative assault on women’s health in Planned Parenthood’s 95-year history.”
Throughout his political career, Pence has been radical in his fight against women’s reproductive rights. As Representative of Indiana, Pence infamously proposed a bill to defund Planned Parenthood of all of its federal funding, a move that president of Planned Parenthood Cecile Richards described as “the most dangerous legislative assault on women’s health in Planned Parenthood’s 95-year history.” During his time as governor, he signed a law that would have required women to cremate or bury the fetal tissue of aborted pregnancies, which as the Intercept points out, would have made Indiana “one of the most medieval in its approach to reproductive rights.” The Intercept also noted that while in Congress, Pence voted to prosecute doctors who performed late-term abortions, with the exception of procedures needed to save the mother's life. Following Trump’s victory and fearing a potential war on women’s reproductive health care, there have been more than 200,000 donations to Planned Parenthood, at least 46,000 of which were made in Pence's name.
The immediate hit to women’s reproductive rights after Trump takes office is not yet clear, but women's health advocates are rightfully wary of what a majority Republican Congress, president, and possibly Supreme Court could mean for the future of civil liberties and social justice. Tebbe pointed out that Trump has vowed to make abortion a state issue, which could mean a hit to financial and geographic accessibility for many women. But the question remains: If Trump is able to overturn Roe v. Wade and restrict women's access to reproductive health care through Congress, what's to keep him from going further?