Trump is following the Dobbs playbook on abortion
Former President Donald Trump posted a deceptively insidious set of prepared remarks about abortion on his social media platform Truth Social today. In a four-minute video, Trump described abortion policy as now being set by the states, without ever mentioning whether he’d support legislation and executive action to affect abortion access nationwide.
Media outlets are presenting this as a substantive pivot for the general election. For instance, here’s CNN:
“Former President Donald Trump said Monday that abortion rights should be left to the states, offering his clearest stance yet on one of the most delicate and contentious issues in American politics. […] Trump had previously suggested he could support a 15-week federal ban with exceptions in the cases of incest, rape and when the life of the mother is in danger. However, his ultimate decision [was] to punt the politically fraught issue to the states and not back a national ban[.]”
That’s not right. A close reading of Trump’s remarks show them to be remarkably slippery and lawyered up, leaving ample room for nationwide restrictions on abortion — the type of bait-and-switch strategy mastered by the very justices who overturned Roe.
Trump’s remarks begin with a series of untruths that I’m going to largely gloss over — namely, that Republicans support access to IVF (they don’t); that “all legal scholars” wanted Roe overturned (also false); and that Democrats support abortion through nine months and beyond (an old slanderous Trump chestnut).
He then segues into discussing abortion policy: He says that in the wake of Dobbs, “states will determine [abortion policy] by vote or by legislation, and whatever they decide must be the law of the land, in this case the law of the state. Many states will be different, many will have a different number of weeks.”
Notably, this is purely descriptive — a summary of where the law currently stands pursuant to Dobbs. Yes, because of Dobbs, states now decide abortion policy by vote or legislation. And yes, Dobbs has meant that many states have different abortion policies — fourteen states have banned abortion entirely.
As for Trump’s “law of the land” statement, that bears more than a passing resemblance to language that conservative Supreme Court justices used to describe Roe during their confirmation hearings. Conservative nominees to the Court routinely described Roe as “settled law” in an attempt to reassure decisive senators like Susan Collins (or at least offer them plausible deniability). “Settled law” sounded comfortingly final, while being utterly noncommittal — never acknowledging that Supreme Court justices retained absolute power to unsettle settled law.
Same with Trump’s “law of the land.” Yes, state-by-state resolution of the abortion issue is the law of the land today — under President Joe Biden and a divided Congress. But what if control of government changes to create a clear pathway to a nationwide ban? Trump and the Republican Party would then have the power to change the law of the land — and face immense pressure from their base to do so through a national abortion ban.
In his video, Trump never states a position on any of the following:
- Whether he’d sign a bill enacting a nationwide abortion ban if it came to his desk (he has previously said he’d support one).
- Whether, even if he did technically leave abortion up to the states, he would use the Comstock Act to eliminate access to medication abortion or abortion-related medical supplies. Or whether his FDA would revoke approval for medication abortion — which is now used for 63% of all abortions nationwide.
- Whether he would support national legislation that bans abortion in all but name only — for instance, nationalized “TRAP law” legislation that inflicts deliberately destructive costs and regulations on abortion providers in order to drive them out of business, leaving women unable to access abortion care, even if abortion remains technically “legal.”
Moreover, Trump’s “different strokes for different states” lingo closely mirrors language from the Dobbs majority opinion. Writing for the other conservative justices, Justice Alito says this in Dobbs: “[T]he people of the various States may evaluate those interests [related to abortion] differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’”
In the very next sentence, Alito’s majority holds that the federal Constitution “does not prevent the people’s elected representatives from deciding how abortion should be regulated.” The ordering suggests that he’s referring to elected state representatives. But the careful wording — “the people’s elected representatives” instead of, say, “state lawmakers” — makes clear that the door is also wide open for abortion to be decided by the people’s elected federal representatives too: meaning a nationwide abortion ban.
The Dobbs majority pulled one over on the Susan Collinses of the Senate: saying one thing when they needed to get power, while leaving just enough room to do another thing entirely once they had it. I strongly suspect that’s the aim of Trump’s carefully-worded teleprompter address, too: to make voters think he’s backed away from nationwide abortion restrictions, but to leave himself space to do exactly that.
And there are gestures in that direction from Trump. When deciding how to regulate abortion, he says:
“You must follow your heart or your religion or your faith, do what’s right for your family, do what’s right for yourself, do what’s right for your children, do what’s right for our country and vote, so important to vote. At the end of the day, this is all about the will of the people, that’s where we are right now.”
Never mind that a legal regime that let’s people “follow [their] heart” and faith, and “do what’s right” for their own personal lives, is exactly what Roe once protected. His “will of the people” tribute is again purely descriptive — it’s “where we are right now.” Trump could easily turn around a year from now and say that following his heart and faith led him to sign a nationwide abortion ban into law.
And his repeated invocation of the importance of voting, of deciding abortion access at the ballot box, is not limited to voting for state lawmakers — like in Dobbs, it very much leaves open the possibility of deciding abortion through federal elections too. He adds this toward the end of his video:
“You must win elections to restore our culture and save our country, which is currently a nation in decline. […] We have to bring our nation back from the brink — and we will, we will do it, I promise you, we will do it.”
That hardly sounds like someone promising to respect state prerogatives on abortion — saving a failing nation from the brink won’t happen through state elections. It sounds much more like someone vowing to take (unspecified, but very implied) national action.
It’s generally a fool’s errand to try to parse Trump’s words to this degree. But this feels sufficiently wordsmithed to be meaningfully different: a combination of facial reassurance to moderate voters, and veiled dog-whistles to his right-wing base, to try to make everyone happy while doing little to box himself in.
Trump uses a segment of his remarks to “thank the six justices [on the Supreme Court] for having the courage” to overturn Roe, thanking them each by name. It’s a reminder that Trump is personally responsible for three of those six votes to strip abortion rights from American women. But it’s a fitting tribute, as Trump is walking in their footsteps on abortion by saying one thing, and winking another.
