Opinion: The Republican Party's bait and switch on abortion

Republican National Convention 2024 sign in Milwaukee

By Mary Ziegler

July 18, 2024 1:16 PM PT

When Republicans affirmed their party’s platform this week, it included a supposedly moderated position on abortion. Don’t believe it.

For decades, the GOP has explicitly pledged its support for a so-called human life amendment, which would extend the protections of the 14th Amendment — its guarantees of due process and equality under the law — to a zygote, from the moment an egg is fertilized, thereby banning abortion as a matter of constitutional law.

Donald Trump’s 2024 platform drops any mention of a human life amendment, emphasizes state control of abortion and explicitly expresses support for both contraception and in vitro fertilization. He seems to have successfully sidelined the most ardent abortion foes and pushed the party a little closer to the center on the issue, where most voters are after the Supreme Court’s overthrow of Roe vs. Wade.

Look more carefully, however, and you see that the Republican platform doesn’t abandon the party’s longstanding commitment to fetal personhood. It simply updates it, and hides it behind less direct language.

“We proudly stand for families and for life,” the GOP 2024 abortion plank begins, before it goes on to assert that the 14th Amendment’s guarantees back up an antiabortion stance. As one party official insisted, the language in no way strays from an adamant “pro-life” position because “there’s protection under the Constitution.”

And while the platform suggests that abortion should be left to the states, the message is there for those in the know: Constitutional fetal personhood would override state laws, even where ballot initiatives protect abortion rights.

The assertion of constitutional fetal personhood, however veiled it might appear to some, reflects an antiabortion strategy that is ascendant in the post-Roe vs. Wade era.

While Roe was the law of the land, fighting directly for a personhood amendment seemed necessary. If the Supreme Court would not reverse its 1973 decision — as long was the case — a constitutional amendment was the only way to undo the right to choose. But it would also require hard-to-achieve supermajorities in Congress and the states in support of a radical and unpopular idea. Rather than trying to overcome that hurdle and amend the Constitution, why not just change its judicial interpretation?

Winning over federal judges was much easier said than done. Even conservative judges and legal scholars weren’t always comfortable with the antiabortion movement, and it seemed their methods of constitutional interpretation, including originalism, some versions of which claim to identify the original public meaning of the text, would not deliver fetal personhood. Over time, however, the antiabortion movement and the conservative legal movement began to unite, finding an originalist angle to endorse: that from the get-go, the nation’s founders believed the unborn child had rights to due process and equality under the law.

In other words, a constitutional human life amendment is unnecessary because the 14th Amendment already guarantees fetal rights. The 2024 GOP abortion plank gestures to just that interpretation.

Of course a party platform is more about theory than practice. As to what a new Trump administration can and would do on the abortion front, there are other sources to look to.

Project 2025, for example, the widely discussed Trump 2.0 blueprint developed by the Heritage Foundation, promotes the revivification of the Comstock Act, a 19th century anti-obscenity law that conservatives — including the vice presidential candidate J.D. Vance — have argued prevents the mailing of abortion-related items. Enforcing it as Project 2025 envisions could create a de facto federal ban because virtually every abortion requires the use of something, from a scalpel to a pill, once put in the mail.

Or perhaps new Trumpian leadership at the FDA would act to reverse the agency’s scientists and take mifepristone, the medication abortion drug used in more than half of all U.S. abortions, off the market.

Or this: Some antiabortion groups have proposed that if Trump wins in November, he could simply use executive power to advance fetal personhood.

Most important for the antiabortion cause, a second presidential term would mean a chance for Trump to move the courts even further to the right. Instead of having to deal with Congress and politicians who worry about the displeasure of voters, abortion foes could rely on like-minded judges to push fetal personhood, judges with lifetime appointments. Trump has already helped the movement with picks such as Matthew Kacsmaryk, the federal judge in Texas who compares the abortion-rights movement to Nazism.

If you read between the lines, the GOP’s platform is not about moderation. It’s about creating the appearance of moderation, all while assuring the far-right’s antiabortion crusaders that a national abortion ban is still coming if a second Trump administration has anything to say about it.

It may just be a matter of time.

Mary Ziegler is a law professor at UC Davis and the author of “Roe: The History of a National Obsession.”