Abortion will not Stay a State Issue, Despite Whatever Trump Says: Serious Issues Have a Way of Becoming National Issues
American Eclectic posts articles twice a month, on the 1st and 15th. This is the second year of publication; previously published articles can be found on my site.
June 15, 2024
Maybe it is too early to see the needle move away from Donald Trump and toward Joe Biden because Trump supported a question asked of him on women who are pregnant and that states with severe abortion restrictions or the outlawing of abortion should monitor them to make sure they do not leave the state to get an abortion.
Time magazine interviewed Trump on April 12th and a follow-up phone conversation on April 27th. Trump in that interview stated that overturning Roe v. Wade was not about abortion. Trump stated:
[I]t wasn't about abortion so much as bringing it back to the states. So the states would negotiate deals. Florida is going to be different from Georgia and Georgia is going to be different from other places. But that's what's happening now. It's very interesting. But remember this, every legal scholar for 53 years has said that issue is a state issue from a legal standpoint. And it's starting to work that way. And what's happened is people started getting into the 15 weeks and the five weeks or the six weeks and they started getting into, you know, time periods. And they started all of a sudden deciding what abortion was going to be.
Well, that sounds like it is about abortion, although in Trump’s mind, he makes it sound like a business activity where businesses are competing for customers. The problem with Trump’s reasoning is that there is unequal treatment of pregnant women in different states based on what he says. A woman who can get an abortion up to 15 weeks (about 3 and a half months) after becoming pregnant is in a different situation in a state with a 15-week ban than a woman in a state with a 5-week window. Based on what Trump said, he makes it sound as though there is a wonderful laboratory of democracy experiment going on within different states designing different ways to approach when (or if) an abortion is possible (and available).
Continuing with what he stated. The question was asked:
People want to know whether you would veto a bill, if it came to your desk, that would impose any federal restrictions. This is really important to a lot of voters.
Trump responded:
But you have to remember this: There will never be that chance because it won't happen. You're never going to have 60 votes. You're not going to have it for many, many years, whether it be Democrat or Republican. Right now, it’s essentially 50-50. I think we have a chance to pick up a couple, but a couple means we're at 51 or 52. We have a long way to go. So it's not gonna happen, because you won't have that. Okay. But with all of that being said, it's all about the states, it's about state rights. States’ rights. States are going to make their own determination.
This does not make sense. A bill to establish federal guidelines or a national abortion ban say, comes to Trump’s desk, assuming he is President, and what happens then? Are we supposed to believe he would not sign it into law and, instead, he would threaten to not sign it and the only way it would become law is if there were a Senate override of a Presidential veto with 60 votes? In reading this quote, Trump has managed to create the impression that he would not be involved in the process of creating a federal abortion ban (admittedly, Time helped him with the way the question was asked).
Simply think about the way a bill ends up on the President’s desk. If a bill passes both houses of Congress with a majority vote then it goes to the President and if the President signs it, that bill becomes law. Trump did not address that issue; he simply addressed a veto override by the Senate. If the House of Representatives stays in Republican hands and the Senate ends up in Republican hands with this upcoming election, will a bill to ban abortion nationally be sent to Trump to sign, if he is President?
Elsewhere in this interview, the question was asked:
I understand, sir. Your allies in the Republican Study Committee, which makes up about 80% of the GOP caucus, have included the Life at Conception Act in their 2025 budget proposal. The measure would grant full legal rights to embryos. Is that your position as well?
Trump responded:
I'm leaving everything up to the states. The states are going to be different. Some will say yes. Some will say no. Texas is different than Ohio.
Again, this fails to address a bill that is sent to his desk and whether he would sign it to make it a law.
The use of the word “conception” is interesting, which is different than fertilization: All intercourse does not automatically lead to becoming pregnant. As one OB/GYN put it, she stated based on unprotected sex twice a week:
50 percent will be pregnant within three months, 75 percent will be pregnant in six months, 90 percent will be pregnant in one year, and 95 percent will be pregnant in two years.
By using the word conception, that can lead to a federal ban on the morning-after pill. That would depend on the legal challenges to how to interpret a law (signed by Trump) titled Life at Conception Act. Conception as in the act of conceiving to have a child, which addresses having intercourse to have a child. The purpose of the morning-after pill is that it is an emergency contraception that can be taken after having unprotected sex. In other words, the morning after is a time covered by conception.
Trump in this interview gives the impression that states will be the focal point of all contentious activity about abortion. Trump stating, “We now have [abortion] back in the states,” does not make it so. Representative Mike Johnson (R, LA), Speaker of the House of Representatives, stated, “President Trump said this is in the states' purview now. After the Dobbs decision, I think that's where it is.” It is difficult to believe what he said.
Conservatives like to create the impression that issues are best left to states (and maybe local governments) to resolve. The impression is created that liberals want national solutions to what should be local (or state) issues. That is the beauty of vaguely used ideological terminology—it is pliable enough to mean whatever you want it to mean depending on the situation. We can assume that if Trump is elected President, there will be efforts in Congress to push for national legislation addressing abortion.
The issue of whether abortion or, for that matter, any contentious and controversial issue remains at a state level and should not rise to become a national issue, can be seen in how Trump approached mifepristone, an abortion pill. He sidestepped the issue of whether he would support the position of preventing the United States Postal Service from being involved in the delivery of this pill. Services like FedEx, I assume could still be used, but I can assume that there would be legal challenges to the right of FedEx to do so. In other words, another cherished conservative position, that government regulation of private business needs to be avoided, would swiftly be pushed aside.
In this interview, the following question was asked:
Do you think states should monitor women's pregnancies so they can know if they've gotten an abortion after the ban?
Trump responded:
I think they might do that. Again, you'll have to speak to the individual states. Look, Roe v. Wade was all about bringing it back to the states.
Trump has been criticized for supporting states monitoring pregnant women. He stated, as a rebuttal to that position, “I never said that ’some states may choose to monitor women’s pregnancies to possibly prosecute for violating any abortion bans.” Partially, what he said is true. As can be seen from the above quote, Time raised the issue and he responded—he did not bring it up. But he continued, “This was made up by Democrats and the Fake News Media,” which is not true—it was a question raised. In his response, he reiterated, “After 50 years, Abortion is now up to the States, where everybody, Republican and Democrat, plus all legal scholars and experts, have wanted it to be.”
How would this not become a national issue, or more precisely, a Constitutional issue? Trump shows an amazing simple reasoning process regarding the functioning of government in the United States. He sees clear demarcation lines where there are absolute state issues separated from national issues—if only that were the case, but it is not true. I think anyone with a basic knowledge of privacy rights and wondering what they cover exactly could see this easily become a privacy rights issue with Constitutional implications.
Trump has a way of saying a great deal about what he would do if elected President again, but we need to take into account that there would be push-back against a lot of his off-the-wall thinking, particularly in the number of federal court cases that would challenge whatever he suddenly begins to do. Trump may issue executive orders and away he goes getting everything he wants but maybe the beauty of the American system is the fragmentation of government that will mount roadblocks to some of Trump’s worst inclinations. Trump would have the opportunity to cause havoc until countermeasures can challenge him, and some of those countermeasures would be court cases that would lead to decisions by federal judges that call for a halt or reversal of some of Trump’s policies. What then would be the pushback by a Trump Administration against federal court decisions? In the case of Trump as President suddenly being in a position to address abortion with national legislation (despite whatever he says now), it would be only a matter of time before the Supreme Court was called upon to demonstrate that, once again, abortion is not a state issue but a national one.
Rick Perry, the former governor of Texas, stated:
Crucial to understanding federalism in modern day America is the concept of mobility, or 'the ability to vote with your feet.' If you don't support the death penalty and citizens packing a pistol - don't come to Texas. If you don't like medicinal marijuana and gay marriage, don't move to California.
Sounds wonderful and does not make sense. It is not easy to pack your bags and move to another state, particularly if a job cannot easily be transferred or there are family commitments based on where you are. Abstract thinking, however, always sounds like an easy way to avoid messy circumstances.
When Newt Gingrich (R, GA) was a congressman, he pushed to have Congressional elections nationalized, which traditionally were seen as local elections, he opened the door that the public, it does not whether Republican or Democrat, make-believe conservative or make-believe liberal, see most issues as national issues. Thomas Phillip “Tip” O’Neill (D, MA) was Speaker of the House of Representatives (1977-1987) and had a well-known quote, “All politics is local.” But Gingrich, essentially, challenged that thinking with the approach of the 1994 Congressional elections (two years after Bill Clinton was elected President) he publicized the “Contract with America,” as a Republican platform that would be pushed if Republicans were elected to the House of Representatives. His strategy to nationalize local Congressional elections worked, and Republicans became the majority political party in the House Representatives for the first time in more than 40 years. Recently, the Nevada Secretary of State, a Democrat, stated, “It's important to realize that we are in a national election, that national election is being run at the local level," which indicated how local and national issues are closely tied together.
The movement by Americans to see issues as national issues was developing long before Gingrich but this one election served to crystalize what had been developing for many years. Cite all the wonderful quotes by James Madison, Alexander Hamilton, and Thomas Jefferson you want about issues belonging in the states and other issues as national government ones, this is a different America we live in.
I was thinking of the movement that began in states and led the national government to pass the Medicare Drug Benefit Bill during the George W. Bush Presidency. This is a good example of how state issues do not stay state issues but become national issues. Prescription drug prices were often four to ten times higher in the United States than in our two neighboring countries of Mexico and Canada. One of the issues that was addressed was the reimportation of prescription drugs from other countries where drugs Americans needed to live were cheaper than if bought in the United States. As a Kaiser Foundation report stated:
Developments in pharmaceuticals have transformed health care over the last several decades. Today, many diseases are prevented, cured, or managed effectively for years through the use of prescription drugs. In some cases the use of prescription drugs keeps people from needing other expensive health care such as being hospitalized or having surgery.
These advances have not come without a price. In 2002, spending on prescription drugs in the U.S. grew 15 percent compared to a 9 percent increase for all health care. This growth in spending on prescription drugs is due to three factors: increased use of prescription drugs in general, [higher] costs for new products coming to market and replacing existing drugs, and increases in drug prices. In 2002, the average price of a retail prescription grew almost 6 percent, reflecting the influence of newer, [higher-priced] prescription products in the market.
In the years before Bush became President, the cost of prescription drugs continued to increase significantly. I lived in Florida during the 1980s, I knew social workers who constantly tried to get seniors to not cut their high blood pressure in half or a third as a way to extend the drug’s use over more days. It might have been illegal for Americans to import or “reimport” American-manufactured drugs from Mexico or Canada, but the Food and Drug Administration (FDA) tended to turn a blind eye to these purchases of drugs from abroad. Bills were introduced in Congress that tried to allow Americans to reimport American-made drugs, but these floundered for years in Congress. Various communities in Maine, for example, set up bus trips where seniors traveled to Canada, just over the border to buy the drugs they needed.
By 2003, many states grappled with attempts to control the costs of prescription drugs but there was ongoing litigation where many of these states were in court as drug manufacturers challenged their policies aimed at controlling costs. It was inevitable that federal government legislation was needed to address the issue.
In December 2003, George W. Bush signed the Medicare Drug Prescription Modernization Act. The price tag was put at $400 billion. Conservatives want to blame make-believe liberals, and Democrats for all the costs of government they do not like, but this was a Republican President signing the bill that added billions to the federal budget. Of course, all the tax increases (particularly withholding tax) under Ronald Reagan as President tend to be ignored, so much for tax and spend liberal.
Put aside the costs to the federal budget or the fact that something had to be done to address the rising cost of prescription drugs and simply look at the pressure that continued to mount for the federal government to step in and do something: States were limited in what they could do. Are important issues ever local or state issues? No! Trump in his Time interview showed a naivete that he failed to understand how America works. The issue of the cost of prescription drugs continues to this day and is still being addressed, but we all recognize that it cannot return to the states to be resolved—the same is true with abortion.
Beyond Trump and his foolish visions of how abortion will play out in this country, is the issue of political ideology. There is simply too much television or particularly cable TV news nonsense that reduces liberal versus conservative to caricature levels and that is harmful to substantive political debate that matters to the future of this country. Trump as Mister Television, unfortunately, lives in the caricature.
Louisiana and the Supreme Court Ruling on Abortion Pills: Two Separate Issues, but They Will Not Stay That Way
On August 1, 2022, a Louisiana law went into effect that made it illegal for pregnant women to get abortion pills in the mail. Anyone who mails abortion pills is subject to a fine and imprisonment. Is Louisiana going to open mail or try to arrest someone in another state? Naturally, these are questions that have to be asked associated with this law.
The Supreme Court in a decision on mifepristine pills used to terminate pregnancies up to seven weeks, reversed and remanded a U.S. District Court for the Northern District of Texas decision that ordered the pills off the market. The Supreme Court’s 38-page decision dated June 13th is not about the right of women to have access to the pills, but addressed whether the doctors who brought the suit to the Texas court had a right to sue in the first place: The pills are, for now, back on the market. Will an individual or organization that can be deemed to have standing to sue, now bring a case before the Texas District Court, and, again, will that court rule the pills need to be removed from the market?
The Louisiana situation and the lack of a ruling that gave women the right to abortion pills, will, no doubt, lead to another Supreme Court case where abortion issues such as access to the pills and receiving them through the mail from outside Louisiana will collide. As this article has pointed out, abortion will not remain a state issue but will continue to be a national one. Despite Donald Trump’s assertions that abortion will remain in the states, that will not happen.
Notes
“Bush signs landmark Medicare bill into law,” CNN.com (December 8, 2003): https://www.cnn.com/2003/ALLPOLITICS/12/08/elec04.medicare/
Food and Drug Administration, Et. Al v. Alliance for Hippocratic Medicine, Supreme Court of the United States, 602 U.S. (2024): https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf
Lee Drutman, “America has local political institutions but nationalized politics. This is a problem,” Vox (May 31, 2018): https://www.vox.com/polyarchy/2018/5/31/17406590/local-national-political-institutions-polarization-federalism
Morris Fiorina, “The Nationalization of Congressional Elections,” Hoover Institution (October 19, 2016): https://www.hoover.org/research/nationalization-congressional-elections
Lauren Floyd, “Mike Johnson sides with Trump on abortion bans staying in ‘states purview’” MSN (May 11, 2024): https://www.msn.com/en-us/news/politics/mike-johnson-sides-with-trump-on-abortion-bans-staying-in-states-purview/ar-BB1mbf4W
Dawn Gencarelli, “Medicaid Prescription Drug Coverage: State Efforts to Control Costs,” National Library of Medicine (May 10, 2003): https://www.ncbi.nlm.nih.gov/books/NBK559776/
“Health Care and the 2004 Elections: Prescription Drug Cost,” KFF (September 2, 2004): https://www.kff.org/health-costs/issue-brief/health-care-and-the-2004-elections-prescription/
Jeanne Lenzer, “Bush wins changes in Medicare benefits,” National Library of Medicine (November 29, 2002): https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1126891/
Madeleine May, Caitlin Huey-Burns, “Nearly 80 officials overseeing elections in 7 swing states doubt 2020 results,” CBS News (May 14, 2024): https://www.cbsnews.com/amp/news/officials-overseeing-elections-swing-states-doubt-2020-results/
“Donald Trump TIME Interview on 2024 Transcript: Read,” (May 3, 2024): https://www.msn.com/en-us/news/politics/donald-trump-time-interview-on-2024-transcript-read/ar-AA1nV3oa
Korin Miller, “Your Chances Of getting Pregnant From Having Unprotected Sex One time,” Self (June 16, 2016): https:// www.self.com/story/your-chances-of-getting-pregnant-from-having-unprotected-sex-one-time
Mallory Wilson, “Trump denies saying states could monitor women’s pregnancies to enforce anti-abortion laws,” Washington Times (May 5, 2024): https:/www.washingtontimes.com/news/2024/may/5/trump-denies-saying-states-could-monitor-womens-pr//