When Donald Trump called the Florida Heartbeat Act a “terrible thing” on Meet the Press last week, he faced some backlash from conservative and pro-life activists, as well as GOP governors who signed nearly identical legislation. The comments will likely be a topic of discussion at the second GOP presidential debate on Wednesday but don’t expect Trump’s most reliable ally on stage, Vivek Ramaswamy, to rise to his defense.
In July, Ramaswamy went to the Iowa capitol to support the passage of a heartbeat bill. “I think it’s a historic occasion . . . a celebration of the pro-life position that I share,” he said. In an interview on August 31, Ramaswamy, an Ohio resident, told me he would vote for his state’s heartbeat law: “As a citizen, if it was put to the ballot, would I vote for it? I would.”
Ramaswamy has faced criticism from pro-life groups because he opposes federal gestational limits on late-term abortions because his belief requires that such laws are “properly reserved to the states” under the Constitution.
“If abortion is murder, look at where our murder laws are. They’re at the state level,” he told me. When I asked Ramaswamy about the constitutionality of the bipartisan 2003 partial-birth abortion ban, a federal law that bans one particular type of late-term abortion procedure and was upheld by the Supreme Court in 2007, Ramaswamy said that the law “already withstood the test of time and a judicial challenge. It has a presumption of constitutionality, which is different than a de novo federal ban.”
Justice Clarence Thomas wrote in his 2007 concurrence (joined by Justice Scalia) in the partial-birth abortion case: “I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” For the past decade, virtually every Republican in Congress supported a federal 20-week abortion limit, and most of them said it is justified under the 14th Amendment’s Equal Protection clause. “The 14th Amendment argument, I think, is less preposterous [than the Commerce Clause argument], but it’s not in any sense of originalist understanding of the 14th Amendment,” according to Ramaswamy. (For the case that Congress has the constitutional authority under the 14th Amendment to protect babies’ lives in utero, read Ramesh Ponnuru.)
Polling consistently shows majorities of Americans opposed to abortion in the second and third trimesters of pregnancy. Still, many Republicans in Congress are now reluctant or opposed to any federal legislation because they’re scared of the politics of abortion, not because of any newfound understanding of the Constitution.