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Updated Feb 23, 2024, 6:08am EST
politics

Six major abortion fights where Trump hasn’t taken a position

REUTERS/Sam Wolfe/File Photo
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The News

Everybody knows abortion will be one of the biggest general election debates after the Supreme Court overturned Roe v. Wade. Nobody knows Trump’s position on the biggest policy fights that they unleashed with their decision.

Trump has proudly stood by the ruling in Dobbs, which all three of his Supreme Court appointees signed onto. But he’s also largely avoided weighing in on daily headlines around state and federal abortion developments; he’s skipped the GOP debates where these issues were dissected; and he’s faced few interviewers who have pinned him down on issues beyond a national ban (which he’s also been cagey about). That leaves voters largely reliant on speculation from his anti-abortion allies as to how he might fill out his White House and the courts and what policies he might pursue — and in a post-Roe world, he has a lot more options this time.

Here are some of the biggest issues in play on abortion where Trump’s position remains unclear. We asked the Trump campaign to weigh in on each individual category and received no response.

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Abortion pills. One of the biggest changes in the policy landscape since Roe is that the majority of abortions are now done using medication rather than in a clinic. That makes the rules around them especially critical, which are already heavily contested by anti-abortion activists. The Biden administration has fought to protect and expand access to the mifepristone, one of two drugs used in the process, while the Supreme Court is now preparing to hear a case that could potentially invalidate the drug’s 24-year-old FDA approval. Would a Trump Justice Department side with activists suing to limit — or wholly block — access to mifepristone? Would a Trump FDA look to revisit access to the drug? He hasn’t said much so far.

The Comstock Act. In 1873, the men of Congress decided to ban abortifacients, birth control, and pornography by mail. Those laws have long been dormant thanks to subsequent amendments and court decisions, but with Roe gone, they’ve popped up in the lawsuits against mifepristone. Project 2025, the Heritage Foundation-led effort to staff and brief the next Republican administration, has argued in its own policy papers that a conservative White House should revive the law and start blocking access to the pill. Other interpretations of the law on the right argue for going further and blocking access to equipment used by clinics. “We don’t need a federal ban when we have Comstock on the books,” Jonathan Mitchell, a former Texas solicitor general who has worked with Trump on ballot cases, told The New York Times. Does Trump agree? If not, what pledges would he make on these issues and how would this inform his appointments?

A national ban. Unlike many of the issues on this list, this is one Trump has been asked about repeatedly. He’s carefully avoided taking a direct position on a national 15-week abortion ban, the top ask from conservative groups. The New York Times reported last week that he privately sounds supportive of a national 16-week ban. Will he embrace a national law at some point, or rule out signing federal legislation on this issue? What are his red lines on legislation that crosses his desk? There’s also a procedural question: Biden has argued the Senate should change its filibuster rules in order to codify Roe’s former protections into law. Trump is also a longtime advocate for ending the filibuster — would he urge the Senate to do so in order to pass legislation on abortion?

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IVF. The Alabama Supreme Court’s recent ruling that embryos are legally children has functionally blocked access to IVF treatment in the state, an outcome that some anti-abortion activists have long advocated for. This issue splits social conservatives, some of whom argue using embryos to facilitate pregnancy should not be treated the same as abortion. Biden sharply condemned the ruling on Thursday. Where does Trump stand on this issue? And would this be a litmus test for judicial or relevant staff appointments?

Exceptions. Trump has said he supports the “three exceptions” — rape, incest, and the life of the mother. But that still leaves many key details blank: Some of the highest-profile policy fights around state abortion bans so far have involved patients fighting to end pregnancies that are deemed non-viable, dangerous to their health, or both. In some cases, the fights are over the limits and definition of exceptions to state bans. The Biden administration sued states over some far-reaching bans, arguing that federal law requires doctors perform abortions on women in emergency situations. At the political level, the Biden campaign has showcased examples of women denied abortions after doctors found fetal abnormalities. Should a woman with a non-viable pregnancy be forced to carry it to term? If a doctor decides it’s a potential danger to her health should she have to wait until it becomes imminently life-threatening to end the pregnancy? And should doctors be prosecuted if the state decides it doesn’t agree with their interpretation?

Judges. Trump explicitly promised to appoint judges who would overturn Roe v. Wade in 2016 and has taken credit this cycle for following through on his word. But with Roe gone already, how would he define “pro-life” judges this time and what legal issues would fall under that category? Would he appoint (or deliberately not appoint) judges who have entertained “personhood” arguments that embryos are legally people with individual rights? What about decisions regarding abortion access across state lines? What about their views on the other issues mentioned in this story, almost all of which are likely to intersect with federal courts?

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