Roe for Trump was a bad trade

 It has been an interesting couple of weeks. We’ve seen the death of Roe v. Wade as we’ve watched the January 6 Committee hearings. The common thread that joins the two narratives is Donald Trump.

The logical question to ask is whether the former was worth the actions that led to the latter. Some, like Erick Erickson in a recent post, are lauding the disgraced former president for his role in appointing the justices who struck down Roe.

By Gage Skidmore from Surprise, AZ, United States of America - Donald Trump, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=107882409

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“I got it wrong,” Erickson wrote. “And I’m glad I did. Trump will go down as the most pro-life President in American history.”

If you look beyond the abortion issue, Trump’s pro-life record is very mixed. To a great extent, his pandemic policies can’t be considered pro-life since Mr. Trump pushed a business-as-usual approach that endangered millions of high-risk Americans.

I’ll acknowledge that Trump appointed good justices, but I question whether that alone makes him “the most pro-life President in American history.” I do give Trump credit for keeping his promise to appoint pro-life judges, but that credit comes with a heckuva lot of baggage.

The thing is that Erickson didn’t get Trump wrong. He had Trump’s poor character and lack of fitness to hold office nailed. Those flaws were readily apparent in the last half of Trump’s presidency, yet Erickson and others made a transactional choice to risk another four years with Trump because, despite the damage and division he caused, he was giving them what they wanted on certain policy issues.

One of those issues finally bore fruit last week when the Supreme Court, along with three justices appointed by Donald Trump, voted to overturn Roe. Does that vindicate Donald Trump for the abuses of power and bad decisions that he made in the first three years and nine months of his presidency, not to mention trying to overturn election results and fomenting coup plots?

I have to say no. With Trump, you have to take the bad with the good and while Trump did do some good things, much of his legacy is very, very bad. Lawlessness, corruption, incompetence, and hypocrisy were the characteristics of the Trump Administration.

Back in 2020, when I’d talk to people about Trump’s problems and flaws, it almost always came down to one defense: “Well, at least he’s against abortion.”

So what about the babies? What would have happened depends on where we alter the timeline. If Republicans had coalesced around a different candidate in the 2016 primary then a different, more unifying and competent Republican would have likely beat Hillary like a drum (and even won the popular vote). That Republican would have appointed very similar justices to those appointed by Trump. Maybe even the same ones.

I can say this because Trump didn’t pick his justices. He picked them from a list presented by the Federalist Society. There was nothing magical or insightful about Trump’s ability to pick judges. If it weren’t for the Federalist Society, he might well have tried to nominate his pro-abortion sister to the Supreme Court, a possibility that he hinted at in 2015.

On the other hand, it is true that once Trump won the nomination, there was only a very remote chance that anyone other than him or Hillary would become president. If Hillary had won, Gorsuch, Kavanaugh, and Barrett would not have been elevated to the Supreme Court. Without them, Roe stands.

But that leads to the question of how much Roe matters in 2022. The more I study the issue, the less impact I think that the Dobbs decision will have. As I’ve pointed out in recent days, most of the states that will ban abortion already see very few of the procedures (possible exceptions are Florida, Georgia, and Texas). There is little to be accomplished by banning what is already rare.

That marginal gain is going to be reduced even further by the increasing popularity of abortion pills. States can now easily regulate or ban surgical abortions, which I think will be looked back upon by future historians as a barbaric procedure, but it will be very difficult to stop residents from getting FDA-approved abortion pills.

Even if the pills are outlawed for pharmacists within the state, there will be a mail-order trade that states can’t touch due to federal supremacy and the interstate commerce clause. If Republican governors and legislatures tangle with the US Postal Service, I’m pretty sure I know which side will come out on top.

The shift from surgical to pharmaceutical abortion was already underway, but the Dobbs decision will likely accelerate the process. As Donald Trump was appointing Federalist Society judges, abortion was already increasing for the first time in three decades.

A report by the Guttmacher Institute earlier this month revealed that abortions had increased by seven percent from 2017 to 2020. This is due to several factors. The report cites a Trump Administration gag rule that reduced contraceptive care and may have led to more unwanted pregnancies, but a separate Guttmacher article from February shows that pharmaceutical abortions have increased sharply and now account for 54 percent of abortions. That trend is not going to be reversed by post-Roe legislation. If anything, it’s going to take grassroots efforts at increasing contraception and working with high-risk moms at crisis pregnancy centers.

This all adds up to Dobbs being a landmark legal decision but a bit of a dud from the point of view of reducing abortion. If Dobbs’s impact is far less than anticipated, then Trump’s destructiveness was less worth the outcome.

And we aren’t done with Trump yet. The Former Guy is gearing up for another run in 2024.

Six years after The Donald descended the golden escalator, I’m still not sure that Trump is pro-life or that he cares about the unborn (or anyone but himself). He did appoint pro-life justices, but that may be a marginal gain that comes at a terrible cost.

Erickson does say that he doesn’t want Trump in 2024, but his argument is no longer against Trump’s character. Instead, he writes, “I think it’d be bad to elect a guy who could only serve four years when literally any other Republican could serve eight years.”

That lack of concern about character is another cost that Trump has inflicted on both the GOP and the country, and it may ultimately prove to be the Republican Party’s undoing. And possibly the country’s as well.

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What comes next in the abortion battle?

 Last week, the Supreme Court overturned its precedent and struck down Roe v. Wade. While this decision is a historic one, it does not outlaw abortion and instead merely returns the issue back to the states. There is a lot of hysteria over the decision, but it won’t usher in a reality akin to the “The Handmaid’s Tale” no matter what you’ve heard on the internet. It also won’t put an end to abortion. So what will this landmark ruling do?

First, it has already sparked a cascade of state laws that tighten abortion restrictions. Counting “trigger bans” that were already on the books and slated to take effect when Roe was reversed, at least 10 states have already banned or nearly banned the procedure. Several more are expected to follow in short order. The Guttmacher Institute estimates that about 26 states will eventually pass heavily restrictive legislation.

Photo by Filip Mroz on Unsplash

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But what then? The chances that New York or California or other deep blue states will enact bans hovers between slim and none. The United States will end up as a country split between pro-life states and legal-abortion states. That isn’t necessarily a bad thing.

Eventually, we will probably establish an equilibrium where abortion ceases to be a major issue. Neither side has the numbers to force a bill through Congress to either codify Roe or ban abortion outright. (I’ve heard for years from Republicans that abortion should be a state issue, but don’t believe for a minute that if they had the numbers to override a filibuster and/or veto that they wouldn’t jettison that principle so fast it would make your head spin.)

If the filibuster were eliminated, that calculus would change, but then we’d see abortion rights come and go as the two parties alternated control of the government. If you think things are bad now, just imagine the country whipsawing between total abortion bans and unlimited abortions every four years or so.

If one party junks the filibuster to pass their priority, the change will benefit the opposition party as well. Neither party should assume that the other will never again have a supermajority.

After the initial round of restrictions, Republicans will push the envelope. Some of this will be due to genuine concern for unborn babies, but some of it will be cynical attempts to keep milking the anti-abortion cash cow. Now that Roe is no more, how do politicians keep the money coming in from those donors? By finding new ways to be anti-abortion.

One of the most obvious new frontiers of abortion legislation will be trying to keep citizens of pro-life states from engaging in abortion tourism to legal-abortion states. I’ve seen the meme below pop up in my Facebook feed several times. While it doesn’t mention abortion, the context is clear.

Photo credit: Facebook screenshot

There is no clear precedent on this concept, but David S. Cohen, a law professor at Drexel University, said that some states might target the criminal conspiracy involved in planning an interstate trip to obtain an abortion.

The Constitution gives Congress rather than states the power to regulate interstate commerce and protects the right of citizens to travel between different states so these laws would almost certainly fail. Justice Kavanaugh even fired a shot across the bow of interstate travel bans in his concurrence on Dobbs.

“May a state bar a resident of that state from traveling to another state to obtain an abortion?” Kavanaugh wrote. “In my view, the answer is no based on the constitutional right to interstate travel.”

A thornier question is how to handle pharmaceutical abortifacients. Attorney General Merrick Garland has said that states cannot ban FDA-approved drugs, but the reality is that this also seems to be uncharted legal territory. If states can’t prohibit doctors from prescribing or pharmacies from filling prescriptions for abortifacients, the effects of Roe’s demise may be much smaller than previously understood. At least with respect to mail-order pharmacies, attempts to ban these drugs would probably run afoul of federal supremacy and the interstate commerce clause.

Another frontier is whether to prosecute women for self-induced abortions. Historically, the pro-life movement has considered women to be among the victims of abortionists, but a small faction of misguided politicians and prosecutors may advance laws in this direction. Earlier this year, a Texas prosecutor charged a woman with murder after a self-induced abortion. The charges were ultimately dropped and I don’t expect this sort of thing to become popular among pro-life activists.

Along similar lines, some Republicans may attempt to regulate contraception. The majority of Republicans approve of contraception, but there are some factions that oppose birth control. Justice Clarence Thomas even wrote last week in his concurrence that the Court should reconsider “substantive due process precedents, including Griswold, Lawrence, and Obergefell.” This refers to cases that addressed birth control, same-sex relationships, and same-sex marriage.

I don’t think that this necessarily means that Thomas opposes birth control but rather the legal rationale that the Court used in finding a constitutional right to contraception. For constitutionalists, the outcome of a case should depend on what the law says rather than a justice’s personal opinions or desires.

Again, I don’t think there is much support for outlawing contraception. I’d be willing to bet that far more of us see contraception as a means to reduce the number of abortions than something that should be targeted. Education and contraception, including morning-after pills, are statistically proven to reduce the abortion rate by reducing the number of unwanted pregnancies.

I also don’t expect that the Court would overturn Obergefell and outlaw same-sex marriage. There are two important differences between same-sex marriage and abortion. First, millions of Americans have entered into same-sex marriages with the understanding that the institution is legal. This cannot be easily undone. Second, the Full Faith and Credit Clause of the Constitution dictates that states must recognize marriages licensed in another state. The slim chance that the Court would overturn Obergefell doesn’t mean that both sides won’t fundraise off the possibility though.

Personhood laws are another possibility. Arizona has already passed a law establishing unborn babies as legal “persons” although the law has yet to take effect. The law was intended to ban abortions due to genetic abnormalities, but the “personhood” movement may have more far-reaching implications that could include child support, due process, and citizenship for unborn babies.

If states, whether red or blue, want to reduce the frequency of abortions, they should make birth control cheap and easy to use. Insurance companies and/or states should foot the bill for vasectomies and tubal ligations. These surgeries are far cheaper than the cost of supporting a child either directly or in terms of welfare, Medicaid, and the criminal justice system.

Where pro-choice activists are going to be funding “camping” trips, pro-lifers should be donating their time and money to crisis pregnancy centers, support for low-income and single-parent families, and sex education and contraception. It’s time to prove that “pro-life” is not just a synonym for “anti-abortion” but a worldview that encompasses aid from the pre-born phase of life all the way to helping the elderly. Sadly, this point of view took a hit during the pandemic as “pro-lifers” refused masks, mitigations, and vaccines to help slow the spread of the Coronavirus to their high-risk neighbors.

In my view, the initial wave of post-Roe regulations is going to lead to overreach. Republicans will push the envelope and as laws and bills become more restrictive and outlandish, moderates who didn’t think much about abortion or sexual politics before Dobbs will start to sit up and take notice. I think that there will be some blowback in terms of lost seats and repealed and amended laws.

As I wrote last week, I think the Dobbs decision was a good one, but I’m not sure that Republicans will like where it leads. Ultimately, I don’t think it will change things very much, especially when the prevalence of pharmaceutical abortions is taken into account. Dobbs may be a decision that, even though it was five decades in the making, came too late to keep up with advances in technology.

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BREAKING: As this article was being written, the Supreme Court released another decision, ruling in favor of the praying football coach in Kennedy v. Bremerton School District. While I’m not sympathetic to the coach for his showy, public prayers (see Matthew 6:5-6), the facts were so bad for the school district in this case that it could only be decided one way.

RUSSIA DEFAULTS: Sanctions are working. Russia defaulted on debt payments for the first time since 1918 over the weekend. As Reuters explains, the legalities of the Russian bond contracts are vague and the default sets off a possibly years-long process for creditors, but the inability to pay its debt represents a loss of face for Vladimir Putin and underscores Russian economic difficulties.

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