The American left’s electoral strategy for the 2024 presidential election is to paint Donald Trump as personally insane and politically dangerous. Only last month, President Biden insisted that Trump told Americans to “inject bleach in themselves” to prevent Covid; Sen. Brian Schatz (D-Hawaii) called Trump “the leader of a global fascist movement”; and the legacy media went into overdrive on Trump’s “bloodbath” comment in Dayton, Ohio, while the Biden-Harris campaign publicly interpreted the line as doubling down on “his threats of political violence.”
Into this rhetorical maelstrom comes Trump’s video message on in-vitro fertilization and abortion. Ever the self-promoting businessman, Trump released his address on his own social-media platform, Truth Social, and in under five minutes staked out a notably moderate position. He effusively praised the Alabama state legislature for its rapid—and probably reckless—grant of civil and criminal immunity to IVF service providers and receivers in reaction to the Alabama Supreme Court’s February ruling that frozen embryos conceived via IVF are “unborn children” protected under law.
More newsworthy, however, were Trump’s words on abortion. He took a strong stand against late-term abortions, painting Democrats as “the radical ones” and describing them as supportive of abortion “up to and beyond the ninth month.” While the phrase “execution after birth” was typical Trumpist hyperbole, he is accurate on the radical policy stance of the contemporary Democratic Party.
Consider the Women’s Health Protection Act, cosponsored by every Democrat in the US Congress. The act would effectively overturn the 2003 Partial-Birth Abortion Ban Act and permit all abortions beyond fetal viability so long as they satisfied an easy-to-pass “risk to the pregnant patient’s life or health” test (notice the Democrats’ mandatory nod to gender-neutral language in reference to pregnancy). Consider also the Born-Alive Abortion Survivors Protection Act last voted on in the House in January 2023, which 210 of 212 Democrats opposed.
Trump’s most noteworthy policy position, however, was his public embrace of federalism. The former president’s stated position is now that “whatever [the states] decide must be the law of the land.” Trump praised the Supreme Court’s 2022 Dobbs decision explicitly for denationalizing abortion law. In doing so, Trump sought to paint Democrats as anti-democratic and intolerant. He referred to the “will of the people” three times and “the people in each state” once, frankly admitting that on abortion, there is no national people capable of holding and expressing a discernable will. In describing state law as “the law of the land,” Trump intentionally called out Biden’s rather different position, angrily shouted during the 2024 State of the Union address: “If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the law of the land again.”
What exactly does Biden mean by this? A literal reading suggests a national return to both a “strict-scrutiny” standard for any legal restrictions on abortion, as well as a “viability” standard that prevents any limit on abortion-on-demand before 28 weeks. Rather than the lesser “undue-burden” standard of the 1992 Casey v. Planned Parenthood decision, strict scrutiny makes it impossible to significantly limit abortion. As legal experts say, strict scrutiny is strict in theory, fatal in fact.
Roe’s viability standard—a medically clumsy unlimited right to a first-trimester abortion and only the most minimal restrictions permitted during the second trimester—would presumably be replaced by a more medically informed definition of viability, currently considered to be around 23 weeks. Either would immediately overturn every post-Dobbs abortion law in the country enacted by Republicans. In fact, Biden’s position would force the entire country to follow the current abortion laws of Vermont. In December 2022, Vermont added a “Reproductive Liberty Amendment” to its state constitution, establishing the strict-scrutiny standard of Roe as the abortion law of that land. The effect has been the elimination of all legal restrictions in Vermont; all abortion procedures are permitted up to birth, save for those banned under federal law.
Trump’s position, in short, is Let Vermont be Vermont, but let Texas be Texas. This isn’t the position his pro-life supporters had hoped for. Brian Burch, president of Catholic Vote, called Trump’s states-rights approach “not sufficient.” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said she was “deeply disappointed.” Sen. Lindsey Graham said that he “respectfully disagree[s]” and restated his support for a national 15-week abortion limit.
Holding to a strong pro-life position myself, I have been sorely disappointed, too, but less by Trump’s statement than by American voters. Since the Dobbs decision in 2022, seven abortion-related referenda have been posed to voters in seven different states from deep-blue California to deep-red Kentucky. In all seven, the pro-life position has lost. Observing this isn’t to simply throw up one’s hands and endorse majority rule. Arguments from the right on constitutional counter-majoritarianism are perfectly respectable and even compelling, and any faux-principled outrage from the left is simply too precious for words. After all, how many times have we heard that rights are “not up for a vote”?
“Fifty-two percent of Americans say that abortion is ‘morally acceptable.’”
The greater concern here isn’t law, however, but politics. It is a straightforward fact that a large swath of Americans today is pro-abortion. Gallup found that last year, 52 percent of Americans said that abortion is “morally acceptable,” a record high, while 34 percent said that abortion should be “legal under any circumstances,” one statistically meaningless percentage point short of the record high set last year. Such sentiments are especially strong among the most powerful Americans. Forty-two percent of postgraduates in the country say that abortion should be legal under any circumstances, while 66 percent of them say that abortion is morally acceptable. Any counter-majoritarian constitutional strategy has to seriously and forthrightly confront these facts. What level of force would be required to effectively sustain a definition of human embryos and fetuses as persons under the 14th Amendment? I suspect a significant and frankly unsustainable level. What would be the damage to respect for law if such a constitutional interpretation was handed down, but not enforced? I suspect a significant amount.
Pro-life Americans need to recognize that a very large number of their fellow citizens are dominated by desire, not so much for sexual pleasure as for the triumph of the individual will. The California referendum passed in 2022 justifies the constitutionalization of abortion in that state on the demands of “freedom.” The Vermont constitutional amendment grounds its essentially unlimited right to abortion in “liberty” and a “dignity to determine one’s own life course.” The deep strain of libertarianism in both parties and among every walk of American is an obstacle no judge or bureaucrat or president can easily overcome.
In his Monday message, Trump did much of what can actually be done in such a country. He spoke of “the creation of strong, thriving, and healthy American families” and insisted that “the Republican Party should always be on the side of the miracle of life and the side of mothers, fathers, their beautiful babies.” He argued that vigorous citizen action is required to “restore our culture” and to “save our country.” In Trump’s view, this seems to amount mainly to voting for Trump, but there is far more and better to be said and done. While the former president praised “the availability of fertility treatments like IVF in every state in America,” he said nothing about legally mandated paid maternity leave, parental leave, part-time work, or child grants—all staples of conservative family policy elsewhere in the world. He said nothing about encouraging marriage or enabling home-buying for young couples.
The political work of limiting abortion needs support from the cultural and social work of strengthening the family. Trump is hardly an ideal carrier of this message. But he has proved himself an able reader of the political tea leaves. Politics is often described as “the art of the possible.” The first-order political goal of any pro-life American today should be to preserve Texas being Texas. Trying to turn Vermont, much less California, into Texas is folly.