The Abortion Squeeze

One of the biggest problems for Democrats in this election cycle is what we might call “the game-changer gap.”

Simply put, there are many more things that could plausibly happen to tank Joe Biden’s reelection chances than could happen to tank Donald Trump’s. Which is ominous considering that, of the two, Biden is the one with no margin for error.

To some degree, that’s the nature of incumbency. If the economy slips into recession or a terrorist bomb goes off on U.S. soil, the president will be blamed. Every misfortune that befalls America is potential grounds for new leadership.

But the game-changer gap this year is also specific to the candidates. Because Biden’s age looms so large in perceptions of his fitness, there’s little he can do to rebuild public confidence that he’s up for the job. On the contrary, any serious ailment or conspicuous cognitive hiccup during a high-profile appearance might sour swing voters on him suddenly and decisively. 

No one would describe Donald Trump as “well,” exactly, but he seems less afflicted by age than Biden does and therefore less likely to suffer a health crisis. The greatest risk that he faces of a game-changing moment comes from the long arm of the law, but that arm has gotten shorter as delays in the criminal cases against him have grown. We’re unlikely to have a verdict in any of them before November except perhaps the Stormy Daniels matter in Manhattan, and no one takes that very seriously.

It’s easy to imagine something terrible happening that renders Biden unelectable and increasingly difficult to imagine the same of Trump. That’s the game-changer gap. Even a new scandal or two (or 10) that may erupt around the Republican nominee is apt to be written off by voters as part of the cost of Trumpy leadership. Amorality is priced into his electoral stock.

There is one underrated possibility of a game-changer occurring before Election Day that will help Biden and hurt Trump, though. On Tuesday of next week, we’ll get our first solid glimpse of it.

That’s when the Supreme Court will hear arguments challenging the FDA’s regulation of mifepristone, a commonly used and effective abortifacient. In particular, the court will consider whether the agency acted lawfully several years ago when it allowed the drug to be prescribed remotely via telehealth consultations and shipped to patients by mail instead of requiring in-person appointments.

As Joe Biden might say, this is a big effing deal.

What makes it a big deal is the latest data from the Guttmacher Institute, which estimates that the number of abortions in post-Roe America is … rising.

We’ve touched on that curious possibility in this newsletter before but Guttmacher now claims that the trend continued for the entirety of 2023, the first full calendar year after Roe v. Wade was overturned. The last time as many pregnancies were terminated in America was 2011.

That’s counterintuitive. And complicated.

Abortions in the United States declined steadily for the better part of 30 years before finally ticking up in 2018. They rose again in 2019, then again in 2020, and inched north of 1 million last year for the first time in more than a decade. Obviously that trend didn’t begin with the Dobbs ruling that undid Roe in 2022; in fact, according to one study published last year, births rose 2.3 percent in states where abortion is now restricted relative to states where it’s still legal after Dobbs.

Another recent study estimated that 5 percent of women who want to terminate their pregnancies no longer can. Without Dobbs, the national rise in abortions might be worse than it is.

But if you want to believe that the end of Roe really and truly backfired on pro-lifers, there’s circumstantial evidence of that too. As red states have shuttered abortion facilities, blue states have raced to expand access—enough so that the net effect may have been to make abortion somewhat easier to come by than it was before. Pro-choice states that border those where the practice is banned saw particularly large surges in abortions last year as women crossed state lines to seek them. 

The political backlash to Dobbs might also have normalized abortion culturally in a way that wasn’t true previously. Some women who would otherwise have felt ambivalent about ending their pregnancies may have ended up tilting in favor as the taboo around the practice eroded further, weakened by aggressive pro-choice messaging. “It’s just a lot of attention, destigmatization, and funding that has been made available,” one expert told The Atlantic. “Even before Dobbs, there was a lot of unmet need for abortion in this country.”
The biggest factor driving the surge in abortions, though, is surely the ubiquity of abortifacients like mifepristone. Feast your eyes on a graphic published in the Wall Street Journal:

In 10 years the share of abortions induced by medication has more than doubled, now comprising nearly two-thirds of all terminations. And now that the FDA no longer requires doctor’s appointments to obtain that medication, it’s never been easier for a woman to access it. She doesn’t even need to leave home to obtain a prescription and receive drugs that will end her pregnancy.

Dobbs vs. mifepristone: Technology has overtaken the law, not for the first time and certainly not for the last.

All of which presents quite a political backdrop to next week’s Supreme Court hearing.

Wherever the court lands, some important constituency or another will end up incensed. If it strikes down the FDA’s regulations, women may be forced once again to seek in-person consultations to acquire mifepristone. That will make things newly difficult for those without easy access to a doctor, especially women who live in states where the practice is restricted. Pro-choicers will be livid. Democratic warnings that the right isn’t content to limit abortion in red states but has designs on banning the practice nationally will ring truer to swing voters.

That’s a big effing deal for Joe Biden’s party, which has overperformed in elections for two years running thanks to a voter backlash against Dobbs. The ruling will likely drop in the thick of the campaign too, just as Americans are beginning to pay attention to the race. It’s a potential game-changer for the president.

If, on the other hand, the court upholds the FDA’s regulations and allows doctors to prescribe and ship mifepristone remotely, it’s pro-lifers who’ll be livid. What was the point of 50 years of anti-Roe advocacy, they’ll wonder, if the result is America becoming a pill factory where abortions are so easy to obtain that you need never leave your living room to have one?

They didn’t fight as long and hard as they did to stand idly by while technology overtakes the law. The law will need to change in order to catch up.

That’s where Donald Trump gets squeezed.

As a wise man noted, there are two sides to Trump’s personality and therefore two sides to his politics. There are things he cares about passionately and will not relinquish, like settling personal grudges with his enemies. That’s his radical side. Everything else is fair game for negotiation in the name of ruthlessly maximizing his self-interest. That’s his transactional side.

Can you guess which side of his personality governs his feelings about abortion?

For the answer, look no further than an interview he gave on Tuesday of this week. Trump is considering supporting a 15-week federal ban on abortion as president, he announced, alleging that even “hardliners” in his party will find that middle ground acceptable. They recognize that “you have to win elections,” he added, a hint that he considers a strong pro-life agenda to be a political liability.

That’s the transactional Trump in full, prioritizing his own election chances over an issue about which social conservatives feel deep moral conviction. But he’s not crazy to believe that abortion “hardliners” will roll over for him; they’re already in the habit of doing so. And he’s not crazy to think that a 15-week ban might be the sweet spot that will appease both sides of the abortion divide, however grudgingly. A recent YouGov poll, for instance, found that Americans would support a similar ban of 16 weeks by a margin of 48 to 36.

The type of ban Trump is proposing could place Biden and his party on the defensive on the issue insofar as it represents a compromise between the extremes. It seems inherently reasonable.

But it’s not that simple. Public opinion here could be in flux.

A New York Times poll last year found Americans split 38-53 on a ban after 15 weeks while a Kaiser Family Foundation survey conducted earlier this month saw 58 percent opposed to a ban after 16. It’s not just polling that’s discouraging, either: When Republicans ran last fall in Virginia on enacting a statewide 15-week ban, it didn’t work out so well for them. Moderate pro-choicers spooked by Democratic scaremongering and the IVF debacle in Alabama might already be turning against a 15-week ban, suspicious that it’s the first step in an incrementalist Republican scheme to restrict reproductive freedoms more aggressively. 

Meanwhile, many pro-lifers who find 15 weeks agreeable in principle may come to feel differently once they discover how few abortions a ban like that would actually prevent. Just 4 percent of pregnancies are terminated in week 16 or later, per the CDC. As enfeebled as the pro-life movement has become by Trump’s leadership, I can’t believe it’s grown so feeble that it’ll tolerate 96 percent of the pre-Roe abortion death toll in perpetuity just to make his life easier politically.

Social conservatives are going to want more eventually. And Trump, rightly mindful of the American majority’s chilliness toward even “compromise” abortion restrictions, isn’t going to want to give it to them. That’s the squeeze. One way or another, by enraging pro-choicers or pro-lifers, the Supreme Court’s ruling in the mifepristone case will tighten it with Election Day bearing down.

There’s even a chance that a ruling for the pro-choice side will turbo-charge interest among pro-lifers in using the long dormant Comstock Act to restrict abortion far more aggressively than a 15-week ban would. Passed in 1873, the Comstock Act prohibits sending anything through the mail or via common carriers like FedEx that’s “intended for the prevention of conception or procuring of abortion.” That law didn’t matter when Roe was on the books; now that Roe isn’t, Comstock is back in vogue among Trump’s allies even if it’s not in vogue with Trump himself—yet.

“We don’t need a federal ban when we have Comstock on the books,” said Jonathan F. Mitchell, the legal force behind a 2021 Texas law that found a way to effectively ban abortion in the state before Roe v. Wade was overturned. “There’s a smorgasbord of options.”

Mr. Mitchell, who represented Mr. Trump in arguments before the Supreme Court over whether the former president could appear on the ballot in Colorado, indicated that anti-abortion strategists had purposefully been quiet about their more advanced plans, given the political liability the issue has become for Republicans.

“I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mr. Mitchell said of Mr. Trump. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”

Understand what a reinvigorated Comstock Act would mean. It wouldn’t just prohibit shipping abortifacients to individual women. It would prohibit shipping them to doctors’ offices and pharmacies. Access to drugs like mifepristone that are now used in 63 percent of American abortions would be essentially frozen.

Imagine the political fallout from that, especially when Democrats start reminding voters that the statute responsible for it was passed nearly 50 years before women in America gained a constitutional right to vote.

Donald Trump is too transactional about the abortion issue and too sober about the electoral consequences of being on the wrong side of it to commit to enforcing the Comstock Act. But …

He’ll be term-limited if he returns to the White House so there won’t be any electoral consequences to doing so for the one person he cares about, himself. He might also come to believe that he has no choice but to move toward more drastic restrictions if abortions keep rising during his presidency, as his legacy on the right could suffer if he doesn’t. It’s one thing to ask pro-lifers to tolerate an increase in terminations when Democrats are in power, it’s another to ask them to do so when Republicans have the regulatory means to go on offense yet choose not to do so.

“He fights!” That’s what Trump’s fans say when asked why they support him. He’ll need to do a little fighting on abortion, no? More than a 15-week ban would amount to, at least.

And I’ll repeat what I said a few days ago: The strange dichotomy of Trump’s political identity, half radical and half transactional, makes it anyone’s guess which faction will be steering policy in his administration on any given issue. (Except immigration, of course.) Perhaps he’ll place establishmentarians in executive agencies who will resist imposing new federal restrictions for fear that the GOP will be wiped out in the 2026 midterms. Or perhaps he’ll place devout pro-lifers like Jonathan Mitchell in charge and they’ll seize the opportunity to try to normalize strict national limits on abortion before Democrats can reclaim a majority in Washington.

You just don’t know what you’ll get from him with respect to issues he doesn’t much care about. Case in point: In his interview on Tuesday, in almost the same breath that he was touting a 15-week federal ban, Trump declared that “everybody agrees” that abortion “shouldn’t be a federal issue, it’s a state issue.” I do happen to agree with that, actually, but by no means does “everybody” share my opinion. And it’s weird even by Trump standards to endorse federal restrictions and a federalist approach to the subject simultaneously.

He did so because he doesn’t care enough about this subject to devote real thought to it, the same way he doesn’t care enough about entitlement reform to avoid blundering his way through muddled answers on that topic as well. He’s simply grasping for a position that’ll free him from the squeeze he’s in, getting pro-lifers off his back while not antagonizing pro-choicers so much that it costs him the election.

If and when the political calculus on abortion changes, he’ll change too. That’s the art of the deal.

I’ll close by saying that if I were Chuck Schumer, I’d be drafting a bill to repeal or at least amend the Comstock Act. That bill obviously won’t pass, but passage isn’t the point. The point would be to jam Senate Republicans and the House Republican majority by placing the lawfulness of shipping abortifacients front and center in the campaign. Forcing Mitch McConnell’s conference to take a tough vote on it and compelling Mike Johnson to explain why it’s not worth considering is an easy way to seed further doubt in voters’ minds about the fate of abortion in a second Trump term. That may be as close to an electoral game-changer as the president’s party is likely to get.