Donald Trump has a complicated history with the pro-life movement. Donald Trump himself, or most of his adult life, was certainly not of any kind of discernible pro-life conviction. On the contrary, in a 1999 interview with NBC's Meet the Press, he described himself as "very pro-choice. Social conservatives largely, not entirely, but largely opposed his 2016 presidential primary run, which was part of the reason that he chose Mike Pence as his running mate in the first place. And that was, it was that strategic vice presidential choice, along with his decision to unveil a list, an actual list from which he pledged he would select. The Supreme Court Justice, who would replace the then recently departed, recently passed away, great Anthony Scalia. It was those two decisions, the vice president Pence running made pick as well as the scotest list, that is largely credited with delivering him the 2016 election, in particular the list. Really, that was the move that got many single issue pro-life voters, got many social conservatives, all of them off the sidelines, and said that, "Look, if he's actually going to stay to his word, then we will support him." And Donald Trump, on the campaign trail in 2016, repeatedly said that he was going to nominate pro-life constitutionalist, originalist judges, justices, and that he would ultimately overturn the barbaric 1973 Supreme Court atrocity, Roe vs. Wade. Well, promise is made, promise is kept, as they say. You know, it is no small bit of irony that the man who became famous in no small part due to his romantic life, his private life becoming the constant fodder of New York City tabloids, the guy who, in his penthouse in Trump Tower on Fifth Avenue in New York City, was known to have Playboy magazine covers all around there. It is no small bit of irony that the man who fits that, who right now is facing an impending criminal sentencing in New York City, on a ludicrous, Stalinist legal persecution, but hold that aside. But the man is literally facing criminal sentencing for an alleged hush money payment scheme involving a one-night stand with a porn star. I mean, the notion that Donald Trump, given that background, became probably the singular greatest hero in the history of the American pro-life movement. I mean, this is a tremendous irony that I don't think people talk enough about. It is just remarkable, honestly. But nonetheless, it is true. He overturned via his judicial nominees Roe vs. Wade. That is indisputable, indisputable. If you look at the Roe decision from 2022, when it was overturned in the Dobbs case, you don't get that. You do not get that by definition. I have my issues with all three of those nominees in their own ways. But again, for present purposes, hold that aside. By sheer dent of the fact that Roe vs. Wade was finally overturned 49 years after it was promulgated by Justice Harry Blackman in a rogue 7-2 decision. By sheer dent of that, Donald Trump inadvertently became the greatest pro-life hero in the history of the American pro-life movement. Ever since then, his relationship with the pro-life movement has been, shall we say, strained. He has subsequently gone out of his way, out of his way, to say that he will not support any kind of abortion restriction at the national level. He has played into the misconception, the legal misconception, that the Dobbs case simply overturned the issue and kicked it back to the states. That is not what the Dobbs case actually said. If you go back and look at the decision, yes, it did say that the abortion issue now resides with the people in the legislatures. It itself, a potentially dubious proposition, if you like me, accept the arguments that the Equal Protection Clause, the 14th Amendment, actually guarantees personhood for unborn children. But again, let's hold that aside. We will revisit that topic another day. But the Dobbs case goes out of its way to refer to legislatures. That is where this issue now resides. It does not say the states. It does include, by definition, the Congress. In fact, yet again, if you go back to Dobbs, that is why Justice Breck-Havenau wrote a gratuitous and frankly obnoxious concurrence, explicitly disavowing 14th Amendment Equal Protection Clause personhood and saying that this actually is a state issue. It was unnecessary, but that really is Subbreck-Havenau is. Again, for the umpteenth time already, we will hold that aside for now. So since Dobbs, Trump has gone out of his way to validate the Kavanaugh approach and say that this is a state issue. He, over the weekend, he and J.D. Vance, his name running mate, has said that they will even veto national legislation pro-scribing abortion, even if it is a 15-week ban, 20-week ban, you name it. And a 15-week abortion ban, a federal level, is something that has been supported by even very moderate Senate Republicans such as Lindsey Graham of South Carolina. It pulls very well, incidentally, with not just men, not as evangelicals, not just religious people in general. That pulls very well with Americans when they are actually given an up or down approach to looking at a 15-week ban, very much including women. But no, the Trump campaign is disavowing that and they are saying that they won't even sign it into law. Perhaps making matters even worse. Trump, one, is a Floridian. He and I live in the same state. We have a major abortion question on our ballot this November. Effectively, the pro-abortion side is trying to constitutionalize on-demand abortion up until at least so-called viability, if not further, due to a mental health loophole. Trump has not said how he is going to vote on that particular constitutional amendment, although he has criticized Ron DeSantis, our governor, and our legislature for passing a six-week abortion ban last year. And then, on the other hand, Donald Trump, in a truth-social post towards the end of last week, actually said that he will be "great" in a second term, not just for women, but for "reproductive" rights. Now, I'm old enough to remember in February of 2019, when Senator Josh Hawley, who had just started at that time from Missouri, interrogated, and correctly, in my view, interrogated then-DC Circuit nominee Naomi Rao for having used the phrase "anti-abortion movement" in some of her earlier academic writing. According to Josh Hawley, and again, I agree with this, that is not the kind of rhetoric that an actual pro-lifer would use. Suffice it to say that if anti-abortion movement to describe pro-lifers is not something that pro-lifers would actually use, then it goes out saying that reproductive rights is not rhetoric that a pro-lifer would use. That ought to go without saying. So, all of this has gone us to the present crossroads, whereby the institutional pro-life establishment, a lot of the leading organizations out there that advocate for unborn human life. Some of these organizations, I have actually spoken at their conferences. They are in a state of undeclared war, so to speak, with the Trump campaign. This is a very difficult issue, and I do not pretend that this is easy how to approach any of this. I am very invested on this issue when I was a first-year law student at the University of Chicago Law School just over a decade ago. I resuscitated the law schools, then more abundant law students for life student chapter. I marched in a march for life in Chicago while I was in law school and quite literally sub-zero temperatures. I have indeed spoken on this issue at pro-life conferences. I have debated and spoke on this issue at law schools. I have debated at my own monitor at the University of Chicago Law School. I have debated the proposition that I alluded to earlier that the Equal Protection Clause, the 14th Amendment, actually guarantees equal protection for unborn children because they are natural "persons" under the language of the 14th Amendment. So, I am pretty much all in on this particular issue. But the reality is, right now, the politics just aren't necessarily there. And I've written a couple of columns on this over the past year. I'm going to quote for you a couple of those columns, and then I want to just talk about this and the strategic voting decision and the calculus and how to think this through. We want to just elaborate on all of that as well. First, I wrote a column just over a year ago, the pro-life dilemma and the politics of prudence. I wrote this in preparation for a speech I was giving at a pro-life conference in Utah last August. Here is an excerpt from that particular column. "The question becomes one of the very oldest in all of politics. What to do with the advancement of one's cause, though that cause is plainly just and righteous, is tempered by both whim and entrenched public sentiment." The answer lies in drawing another parallel between abortion and chattel slavery, which, like abortion before it, both involved the wicked treatment of human life as disposable property and was falsely codified as a so-called "right" under the U.S. Constitution due to the oxymoronic constitutional law doctrine known as "substantive due process." In 1858, during his first debate with Stephen Douglas in Ottawa, Illinois, Abraham Lincoln said, "With public sentiment, nothing can fail. Without it, nothing can succeed." Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions impossible or impossible to be executed. Now, Lincoln's point must not be misinterpreted. Law and culture do affect each other, and a skilled ruler can utilize the law as a means of inculcating virtue or instilling sound republican habits of mind. But some underlying reserve of public sentiment, some of it, is still necessary to affect transformative change. In order for voters to trust a ruler such that they might ultimately be guided by him, they must first sufficiently trust that the ruler adequately speaks for them and has their best interests in mind. So that is a part of a column that I wrote just over a year ago, again titled "The Pro-Life Dilemma and the Politics of Prudence." I weighed in again in a separate column this April at a time when Donald Trump rejected a national abortion ban. Now, I already alluded to in the last column that I just read a few. I like to analogize, as do many other pro-lifers, the fight to abolish abortion to the fight to abolish slavery. And I'm born on Abraham Lincoln's birthday, as I mentioned on the show before February 12th, and Abraham Lincoln is really my hero of all heroes in American history. And that definitely motivates my desire to compare these to righteous and just abolition movements. But part of it is just common sense and intuitive. The Dred Scott case of 1857, just like Roe vs. Wade held that a certain class of human beings were to be just treated as disposable property. Back then in the 1840s, 1850s, when anti-slavery abolitionists oftentimes religious Christians, frankly, will come out and say, back then, we need to abolish slavery. The pro-slavery crowd would often say, why are you trying to enforce your morality on us? You don't want to slave, just don't buy a slave. Is that not the exact same arguments we hear today from the pro-abortion side? Don't impose your morality on us. You don't want an abortion, just don't have an abortion. Let us have it. It's really the same thing. Same constitutional doctrine invoked to constitutionalize under fallacious grounds, both things they already alluded to. Tough stuff. Tough stuff. Here is how I concluded my most recent column weighing in on this. Which I wrote in April, just four and a half months ago, and I titled Trump Abortion and the 2024 election. "Overall, the pro-life cause must be less concerned with short-term tactical disagreements and more concerned with unanimity as to the long-term goal." If states writes, which is what Dobbs gave us becomes the goal, that is a big problem. The true goal must remain unambiguous, constitutional personhood. We have a lot of hearts and minds still to persuade to get there, but we also need political power. Hence, the paradox. Look, would I prefer that Donald Trump and JD Vance not necessarily dismiss out of hand for purely electoral purposes, the possibility of signing even a merely-mouthed 15 or 20-week national abortion ban? No, of course, I would prefer not to live in that world. But we're dealing with a situation here where even if Republicans have a landslide 2024 election, they are not gaining a 60-vote filibuster-proof majority in the upper chamber of Congress. There is no world in which there is going to be a situation wherein they are even capable of signing a 15 or 20-week abortion ban into law. So while I lament that this is our current state of affairs, it would be severely overstating it to say that this is a massive, massive, massive deal. It remains the long-term goal, obviously, and that could only happen at the federal level. That is the lesson, the enduring lesson of Lincoln's rebuttal to Stephen Douglas when Douglas pleaded popular sovereignty in the Western territories, and Lincoln, to paraphrases 1854 speech in Peoria, instead asked the relevant question not of procedure, but rather is, in his parlance of the day, is the Negro a man or not a man? That is the relevant question. Well, so too, in our era, the relevant question ultimately is whether or not the unborn child is or is not a human being. That is the ultimate question, not the specific jurisdiction in which that unborn child has been conceived. So this is going to have to ultimately get decided at the federal level. No doubt about that. But I think that pro-lifers, pro-life voters and the pro-life establishment in general would really be fooling themselves and doing a tremendous disservice to alienate the presidential nominee of the only party that is receptive to their concerns, and especially to just try to shiv and shunt aside that particular nominee when he singularly delivered a half century long sought after result, the overturn of Roe in the Dobbs' opinion. Again, you can think of Donald Trump whatever you want. You can think of his private life as this, is that you can disagree as I disagree with his stance on legislating on this issue at the national level. One, again, for sheer dent of the Senate mathematics, this is not a live issue. We are speaking here in an academic hypothetical setting. And instead of playing with rubber bullets, you're shooting with real rounds when you're actually threatening to withhold your vote and not supporting it. And more generally, perhaps consider the possibility that the guy who was able to overturn Roe vs. Wade deserves some kind of benefit of the doubt, even if many of us wince when we hear things that are admittedly gratuitous, such as the truth social post about so-called reproductive rights. Was that gratuitous? Yes. Frankly, borderline spousal abuse. It really irked me. I'm not going to lie to you. But he deserves some benefit of the doubt nonetheless, given the track record. More generally speaking, it would behoove pro-lifers to consider what could be done administratively from a law enforcement perspective, even if new legislation will not necessarily be able to pass on this issue in the Congress. For example, one of my friends, the outstanding attorney and staunch pro-life for John the Mitchell, has been a long-standing advocate of trying to use the Comstock Act, which is an old statute that criminalizes the distribution of lewdless civius materials and so forth via the postal service and common carriers. Jonathan Mitchell, that is, has been a staunch proponent of enforcing that when it comes to medication abortion, so to speak, and the abortion pill. Miffipristo, and so forth. That is the kind of thing that can easily happen administratively. The law is already on the books. It simply has to be enforced. Now, Trump has already gone out of his way to say that he is not going to enforce Comstock. That is how hard he is going to try to appease people who are sniping at him, calling him pro-life fascist, authoritarian, or this, that it is gratuitous. It is too much, but here's the key point. Even on an issue like Comstock, when it comes to administration and law enforcement, does Trump shine the door seriously close the possibility? I mean, were you all just not paying attention during Trump's first term? I mean, with all due respect that I fully intend to over Donald Trump this November, of course, in fact, I publicly signed the recent Jewish Voices for Trump Coalition. I gave the campaign a formal quote, so I'm in. I mean, I'm voting for the guy. But, I mean, it doesn't take a rocket scientist to go back and look and to see that, you know, he wasn't exactly peeking under the hood of his first term administration. With a fine tooth comb. Not necessarily the most vigilant chief executive, shall we say. Deep State running a mock, the intelligence agencies, CIA, NSA going unhinged on him, spying crossfire hurricane, you name it. So, all that leads me to my conclusion, which is, look, if you think that Donald Trump is insufficiently pro-life, and I am very sympathetic to that underlying gripe. The time for that was in the primary. What exactly are you trying to prove? What good could it do at this juncture? To try to threaten your own personal vote, try to threaten the pro-life movement's vote and support. If he doesn't necessarily rhetorically agree to a policy, for instance, a federal abortion ban, that stands roughly 0.001% chance of passing. In a second Trump term. I just don't understand the calculus. It is far, far, far better at this point. If I can just be as blunt as possible here, sharing the pro-life movement's convictions as staunchly as I do. It is best optimal strategy. Game theory, whatever you want to call it, to just zip it, stop talking about this, get the man in office, and then try to work the inner workings of the administration. Come January 2025. That's where I'm at. In my opinion, that is where the pro-life movement in general right now should be at.
