Eight (or Nine?) Republican Presidential Hopefuls in Search of a Federal Abortion Policy

Donald Trump's principal reason for skipping last night's Republican Presidential primary debate was that, as the clear frontrunner, he would be the target of criticism from everyone else on the stage. That might or might not have been true. Vivek Ramaswamy, as the closest thing to Trump's surrogate in the debate, did attract more attacks than anyone else on stage. But it was much easier for the other candidates to criticize Ramaswamy than it would have been to go after Trump himself--both because Trump is a more effective mean girl in these settings and because going after Trump himself would risk alienating his base in a way that going after Ramaswamy did not.

In any event, Trump's absence enabled him to avoid talking about abortion. What the other candidates said about the topic -- from just after the 26-minute mark until just before the 37-minute mark -- revealed the difficulty the issue poses for them in running for the nomination from a party with a primary electorate that favors much stricter abortion restrictions than those favored by the general electorate.

The segment began with a somewhat unfocused question for Nikki Haley about how to navigate abortion politics. She cast herself as an "unapologetically pro-life" pragmatist, offering support for "consensus" positions such as supporting adoption, keeping contraception legal, and banning late-term abortions but opposing a national abortion ban on the ground (as she said in a later exchange) that it could not get through the Senate anyway. Following the lead of other candidates, she concluded the segment by trying to turn the tables, suggesting that the question should be put to President Biden and Vice President Harris whether they support legal abortion up until birth.

That last move mirrored the approach of Democrats, who typically prefer to point (correctly) to the extremity of the laws favored by Republicans rather than to talk about exactly what laws they favor. In some sense, this is exactly what one would expect, because Democrats have the mirror-image problem of Republicans: the Democratic base supports more permissive abortion laws than the general public. But yesterday's debate did not feature any Democrats, and so the question was where the Republican candidates would land.

Not every candidate weighed in on the question, but among those that did, there emerged an interesting mix of political pragmatism, question avoidance, political pragmatism masked as principle, and genuine principle.

As I've noted already, Haley was the most openly pragmatic.

Ron DeSantis most clearly dodged the question, twice not answering whether he would support a federal abortion ban and instead initiating the effort to turn the tables on Democrats by painting them as supporting abortion on demand until birth.

Mike Pence tried to portray himself as principled. He scolded Haley on the ground that seeking consensus is not leadership. He invoked his devotion to Jesus Christ and quoted Biblical verses. But then he said that he supports a federal ban on abortion after 15 weeks of pregnancy on the ground that 70 percent of the American people support such a ban.

The statistic is dubious; 15-weeks is just past the divide between the first and second trimester; the latest Gallup poll found that 37 percent of Americans believe abortion should be legal in the second trimester, so at most 63 percent of Americans support a 15-week ban; the actual number is probably lower because Gallup's data don't reveal how many people answered something like "don't know" or "unsure" in response to that question.

In any event, Pence's support for a federal ban that kicks in only at 15 weeks seems very much like the consensus-driven approach of Haley rather than a stance rooted in principle. After all, his Bible-inspired view is that abortion is immoral from conception. Tim Scott, who also touted his anti-abortion bona fides, likewise championed a 15-week federal ban, but he left open some wiggle room by saying that this was what he supported as "the minimum" federal restriction on abortion. So perhaps whereas Pence disguised his pragmatism as principle, Scott could be said to have tempered his principle with some pragmatism.

To my mind, the only truly principled answer came from Doug Burgum, who said that while he supports very restrictive state abortion bans (like the six-week ban he signed into law for North Dakota earlier this year), he opposed a federal ban on Tenth Amendment grounds. The Constitution, he said, does not give the federal government the power to regulate abortion, and asserting it would open the door to other exercises of federal power in derogation of state sovereignty.

In response, Asa Hutchinson correctly pointed out that the SCOTUS decision in Dobbs handed over abortion policy to "the People's elected representatives," including Congress, but that response seemed to miss Burgum's point. Throughout U.S. history, politicians who view the Constitution as imposing more limits on Congress than the Supreme Court recognizes, have opposed federal legislation that the courts would uphold. The most famous example is probably Andrew Jackson's veto of the bill to renew the charter of the Bank of the United States. True, Jackson opposed the bank on policy grounds, but he also denied that the Supreme Court decision in McCulloch v. Maryland (upholding the constitutionality of the Second Bank of the United States), resolved the issue for the political branches. Echoing Jefferson's views with respect to the Alien and Sedition Acts and foreshadowing Lincoln's comments (in his first Inaugural) regarding the authority of Dred Scott, Jackson asserted that "[t]he Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution."

I thus read Burgum to be saying that even if Justice Alito signaled in Dobbs that the Court would find power in Congress (presumably under the Commerce Clause) to enact a federal abortion ban, he, as a President with a more robust view of states' rights, would be duty-bound to veto such a law as beyond the scope of Congressional power. While I strongly disagree with Burgum's substantive views about both abortion and the scope of Congressional power, I must say that I respect his commitment to principle here. I will also say that I very highly doubt that that commitment will move him out of the "Doug who?" category of candidates.

Will any of this matter? Even if Trump is tried, convicted, and sentenced to prison before November 2024, he's very likely to be the Republican nominee, so what these other candidates say is unlikely to have any impact on the election, even if one of them ends up as Trump's running mate. Trump himself has tried to maintain a kind of strategic ambiguity about whether he supports a national abortion ban, mostly because he believes--correctly--that it's a political loser in the general election.

Any Republican candidate is likely to downplay his or her opposition to abortion in the general, but doing so likely won't have much of an impact. Voters who care one way or the other about abortion will vote accordingly. Voters for whom abortion is not a priority will probably not care about or even notice the differences of nuance between, on one hand, the pragmatism of Haley and (more importantly) Trump, and, on the other hand, the faux-principle of Pence and Scott. No one (other than a few constitutional law professors) will notice or care about Burgum's principled stand for constitutional departmentalism.

Overall, abortion seems to be more of a motivator now for Democratic voters than for Republican ones, a marked shift from the pre-Dobbs situation. Should the 2024 election go narrowly for the Democrats, we will thus have Justice Alito to thank.