Donald Trump raises the issue of abortion at the polls

In the nearly two years since the Supreme Court struck down a constitutional right to abortion, support for the right has increased. The extreme measures taken by anti-abortion forces in the wake of Dobbs v. Jackson Women's Health Organization have made this almost inevitable. In February, the Alabama Supreme Court took the opportunity to define frozen embryos as children, thereby jeopardizing the practice of IVF (state lawmakers knew this was a losing approach: they adopted (hurriedly drafted a bill protecting fertility treatments.) Earlier this month, a Louisiana court ruled that the state's legislative committee rejected a bill that would have allowed exceptions to the fertility ban. State abortion in cases of rape and incest for persons under seventeen years of age. A policy blueprint prepared by the Heritage Foundation for an incoming Trump administration calls for an all-out assault on abortion pills, urging officials to use an outdated anti-obscenity law to ban them from the mail. And, in the coming weeks, the Supreme Court that filed the case against Dobbs will decide whether Idaho hospital emergency departments can deny abortions to patients who could suffer serious health consequences, but not die immediately if they do not terminate their pregnancy.

Perhaps the most compelling factor is simply the realization that a fundamental decision on such intimate and life-altering matters could be wrested away by the state. A majority of adults in most states, including those where abortion is now effectively banned, believe the practice should be legal in all, according to a new survey by the nonpartisan Public Religion Research Institute. or in most cases. This includes seventy percent of blue state residents and fifty-seven percent of red state residents. In 2022, there were seven states where less than a majority supported abortion rights; last year there were only five. According to a recent Wall Street Journal poll, nearly forty percent of suburban voters cite abortion rights as a top priority, and nearly three-quarters of them believe abortion should be legal in all or most circumstances.

So it's not really surprising that Donald Trump, the man who pledged to nominate Supreme Court justices who would overturn Roe v. Wade, and who then did it, prefers to say recently that what he really did was turn the matter over to the states. Democrats, Republicans, liberals and conservatives wanted abortion out of the federal government, Trump said at a rally in Wisconsin. Basically, states decide on abortion, and people are absolutely thrilled with the way it's going. He also has a history of saying he doesn't support a federal ban, the ultimate goal of many in the anti-abortion movement.

He's absolutely thrilled that Trumpism is absurd in this context, but he's onto something. For decades, a dominant criticism of Roe was that it short-circuited state-by-state democratic deliberations on a particularly controversial social issue. Even some liberals who supported abortion rights, notably Ruth Bader Ginsburg, shared this view. But it was expressed most forcefully by anti-abortion legal scholars, including the justices who overturned Roe, and proved very helpful to them. In a recent Harvard Law Review article, legal scholars Melissa Murray and Katherine Shaw argue that the call for democracy and democratic engagement served a rhetorical purpose, shielding the court from accusations of judicial overreach.

This call is looking more and more like a fig leaf. Dobbs' conservative majority clearly imagined that the issue of abortion would be addressed primarily by state legislatures and that they would produce more restrictive laws. Some twenty-one states have actually banned or severely restricted this procedure. (In the majority opinion, Samuel Alito wrote that Roe had closed the democratic process to the large number of Americans who disagreed with it.) As Murray and Shaw point out, there is a rich irony here: the majority who The democratic process on abortion has sought to undermine it in a series of cases narrowing the scope of the Voting Rights Act and allowing gerrymandering.

Yet the version of democracy invoked by many of Roes's critics was, ultimately, limited. Dobbs also sparked a grassroots voting initiative movement. In seven states, residents went to the polls to decide whether and to what extent the right to abortion should be protected. In all seven cases, they voted to uphold these rights, in some cases by enshrining them in the state constitution. In November, voters in a dozen more states could vote on similar referendums. The response from Republicans at the state level has often been to cancel initiatives, in defiance of the will of the people. In Ohio, when it became clear that an initiative that would guarantee reproductive rights in the state constitution had collected enough signatures to pass, the state Republican Party held a special election to raise the threshold of voters required to approve such an amendment. (Voters rejected that effort and later amended the constitution.) Republican-led legislatures in Missouri and Arizona reportedly attempted similar tactics. In South Dakota, a group called Dakotans for Health gathered enough signatures to submit an initiative to overturn that state's law, which prohibits abortion except to save the mother's life. In anticipation, the Legislature passed a bill signed by Gov. Kristi Noem, allowing signers to remove their names from these petitions. A Republican lawmaker justified the bill by arguing that people could have received misleading information and not understood what they were signing. But many South Dakotans must have easily understood what the legislature was trying to do: prevent them from having a say in reproductive rights.

Trump's embrace of the state-by-state approach is unlikely to scare away his anti-abortion and evangelical voters. They know it remains by far their best chance to impose more restrictions at the national level, even if they don't result in a federal ban. They can reasonably assume that he will say whatever he thinks he needs to say now, and then defend them if he wins in November. But abortion rights initiatives could boost Democratic and independent turnout; swing states Arizona and Nevada are two of the states set to vote on them.

And, of course, these initiatives and the effort it took to get them on the ballot in their own right. Justice Alito wrote in Dobbs that the Court could not assess the effect of abortion rights on society and particularly on women's lives. The past two years have shown that many Americans have no difficulty doing so.

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