Figuring out what a second term for Donald Trump would mean for reproductive rights hasn’t been easy. He began with implausible and cryptic promises to make a deal on abortion that would lead to “peace on that issue,” then flirted with endorsing a 15-week ban. More recently, the former president pivoted again, suggesting that a single idea encompassed his thinking on the issue: states’ rights, letting red states do what they liked but doing nothing to criminalize abortion at the federal level.
But in a wide-ranging recent interview with Time magazine, he provided the most revealing glimpse yet of where he actually stands — both in what he was willing to say and what remained unspoken. First, he seems to have no position on state-level restrictions, no matter how extreme. Second, and just as important, he still stubbornly refused to say anything at all when it comes to reviving the Comstock Act, a 19th-century obscenity law, as an abortion ban. It seems he wants to obscure his stance until it is too late for voters to decide what to make of his position.
It seems dystopian — and difficult — for states to effectively monitor every single person who could become pregnant.
Trump’s interview first makes clear that his idea of states’ rights is a kind of no-holds barred reality in conservative states. When pressed about whether states could surveil every pregnancy within its borders, he responded in the affirmative. When asked whether states could choose to punish women, he saw no reason that they couldn’t.
Some of these hypotheticals may never come to pass. It seems dystopian — and difficult — for states to effectively monitor every single person who could become pregnant. Even laws punishing abortion seekers — which are now being championed by so-called “abolitionists” — seem unlikely to pass in the near term. Leading antiabortion groups reject them, even as abolitionists argue that anything less but punishing women cannot be reconciled with the idea of fetal personhood. What is revealing about Trump’s answer is that as far as red states are concerned, he thinks anything goes.
That hardly means Trump will leave it to states to set their own policies. Trump’s interviewer, Time reporter Eric Cortellessa, asked the former president whether he agreed with the Life at Conception Act, a personhood-adjacent bill sponsored by some of the most antiabortion members of Congress. When Trump repeated that “I’m leaving everything up to the states,” Cortellessa asked him whether he would veto such a measure if it landed on his desk. Trump refused to answer the question, insisting that such a bill would never get through Congress.
That diagnosis seems correct, but Cortellessa pointed out that for months, veterans of the first Trump administration have promised that the former president would transform the Comstock Act, an 1873 obscenity law that is already on the books, into a de facto ban on all abortions. A coalition of more than 100 conservative groups espoused this theory, contending that the Comstock Act makes it a crime to send or receive information, pills or paraphernalia related to abortion in the mail.
This argument overrides nearly a century of federal precedent, but it appears to have already convinced Supreme Court Justices Clarence Thomas and Samuel Alito, who echoed these ideas about Comstock in recent oral arguments in a case involving mifepristone, a drug used in more than half of U.S. abortions. To make the Comstock strategy work, antiabortion leaders would not need to convince voters or even Congress. They would need to persuade the Supreme Court’s conservative supermajority to accept their interpretation of Comstock — and would need a Trump Justice Department to enforce it.
It’s not hard to see why Trump prefers to hide behind the states and avoid questions about a Comstock-based ban.
Trump has dodged questions about the Comstock Act for months. In the first part of his interview with Time, conducted April 12, he pledged to issue a major statement about it within the next two weeks. That, of course, was more than two weeks ago. In the second part, conducted Saturday, Trump swore that his announcement would come “over the next week or two.”
It’s not hard to see why Trump prefers to hide behind the states and avoid questions about a Comstock-based ban. If a state decides to recognize fetal personhood (and thereby functionally prohibit IVF), Trump can disclaim responsibility. Meanwhile, his campaign has been having it both ways with Comstock. While the former president beats the drum about states’ rights, his allies and proxies promise antiabortion voters that he will give them the abortion ban they have always wanted.
Trump may never issue that statement about the Comstock Act, but it is clear that some voters have fundamentally misunderstood what he will do if he wins a second term. He cannot both enforce the Comstock Act against doctors, patients and drug companies in progressive states and keep the federal government out of the abortion issue. But if his campaign is successful, we will not find out which road he plans to take until after he is sworn into office — when it’s already too late.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession."