Americans who would like to be accurately informed about the abortion debate should look elsewhere.
Americans who would like to be accurately informed about the abortion debate should look elsewhere.
E arlier this week, the New York Times ran an article by Kate Zernike about pro-life activists’ goals for a second Trump administration. The heavily pro-choice core readership of the Times is likely to come away from this article scared about a Trump victory. But it will also have absorbed a picture of pro-lifers — and about federal law, and about how a Trump administration could use it — that is misleading in multiple respects. A few of the problems:
(1) Perhaps the most misleading passage of the article says that many anti-abortion activists argue that even when pregnancies seem to threaten mothers’ lives, “women should carry pregnancies until the fetus or child dies on its own.” She links to a statement from the pro-life Lozier Institute — but that statement makes no such claim. Other reports from the institute have said the opposite: that there are “rare and heartbreaking circumstances when [abortion] is necessary to save the life of a pregnant woman.”
It’s true that some pro-lifers have inadvertently caused confusion by making a semantic argument: They deny that the term “abortion” should apply to medical interventions that cause unborn children to die but are not intended to kill them. If you adopt that definition, it follows that (as Zernike puts it, misdescribing pro-life views) “abortion is never medically necessary.” But even the pro-lifers who use the word “abortion” that way don’t believe “women should carry pregnancies until the fetus or child dies on its own.”
(2) The line about what pro-lifers supposedly believe about life-threatening pregnancies comes during a discussion of the legal fight over the Biden administration’s novel reading of a 1986 law that requires hospitals to provide emergency medical care. The administration claims that law requires abortions in some cases, even if state law forbids those abortions. The chief potential problem here is that the administration appears to be preserving the option of saying, at some point in the future, that abortions are needed to preserve the mental health of women who want them and are therefore required as emergency care. That’s the dispute that came to the surface when the Supreme Court considered a case about the regulation.
Zernike doesn’t mention that point. She does not mention that before the Supreme Court, the administration was unable to identify any circumstances in which its regulation would compel an abortion banned by a state. Maybe these are defensible omissions: The issue is complicated, and space is limited. But she also provides a very charitable account of why the administration issued this interpretation: It was, she asserts, to reduce health-care providers’ confusion rather than to tee up a campaign issue or establish the principle that the federal government can override state laws against abortion.
(3) Zernike misstates what the Comstock Act does and how pro-lifers generally believe it should be enforced. The law, she writes, “made it a federal crime to send or receive materials ‘designed, adapted, or intended’ for ‘obscene’ or ‘abortion-causing’ purposes.” But this is true only for sending and receiving those materials across state lines using the U.S. mail or common carriers. Enforcing that provision of federal law would have real bite compared with the Biden administration’s nonenforcement. But it would not “ban abortion pills,” as she says. Zernike repeatedly refers to the pro-life legal activist Jonathan Mitchell, suggesting that he considers Comstock enforcement equivalent to a federal ban on abortion. In an email to me, he made it clear that he does not believe that.
(4) Zernike claims that “the act could be used to criminalize buying or selling medications used in gender-affirming treatment or to prevent H.I.V. infections — which Mr. Mitchell and his colleagues in the anti-abortion movement have tried to restrict.” Mitchell informs me that he has never argued, and does not believe, that the Comstock Act could be reasonably interpreted in this fashion. He has argued that states have the authority to limit the use of drugs and surgery in attempts to change the sex of minors, and that employers and insurers do not have legal obligations to cover medications to prevent HIV infections while charging no co-pays.
(5) Zernike writes,
Anti-abortion activists have also drafted a blueprint for how Mr. Trump could use his executive powers to recognize fetal personhood in the Constitution — meaning that abortion at any stage would qualify as murder.
Americans United For Life outlined this idea in a 2021 document called the Lincoln Proposal. Much as President Lincoln used his constitutional powers to abolish slavery despite the Supreme Court’s affirmation of it in the Dred Scott decision, the group called on Mr. Trump to issue an executive order “recognizing preborn persons as constitutional ‘persons’ entitled to the fundamental human rights of due process and equal protection of the laws” safeguarded in the Fourteenth Amendment.
That document does not claim that any president has the power to prohibit abortion via executive order. It does not claim that the executive order it advocates would require any law-enforcement agency or court, at the state or federal level, to treat abortion as illegal. (The Lincoln parallel should be a giveaway: He struck the blows against slavery he believed himself constitutionally authorized to deliver, but believed full abolition throughout the country required a constitutional amendment.)
Pro-lifers should be annoyed by all of these distortions. But so should other Americans who would like to be accurately informed about the abortion debate.