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‘Trump Card?’ The Consequences of the U.S. Election for the Unborn Right To Life & Abortion

by Peter D. Williams

Last week, the world was shocked by the election of Donald Trump as the next President of the United States. In the U.K., the reaction has largely been a mixture of amusement and horror, and this is very understandable. Trump’s Election is amusing because he is an absurd and oafish figure, given his inanely repetitive rhetorical style, ridiculous appearance, and laughable egotism. Yet many have also found it horrifying as well, as he is a cynical demagogue (in his exploitation of antipathy towards immigration), and also a boor and a pig (in the frankly disgusting way he has talked about and treated women).

Indeed, much more that is repulsive could be said about Trump himself, and given the profound flaws in his character, it is worrying that some American right-to-lifers have chosen to ally themselves with, and even support, him. Yet what is also undeniable is that his Election has the potential to be very salutary indeed for the dignity and rights of unborn children. Seeing the broader political context of the Presidential Election and the abortion debate in America, allows us to see why.

In the written U.S. Constitution, there are three ‘branches’ of Government – the Executive (the Presidency and Cabinet – i.e. the Federal Government), the Legislative branch (the elected Houses of Congress), and the Judicial branch (the Courts). Between these three branches there is a ‘Separation of Powers’, according to which no one branch has supremacy over the others. Due to this, the U.S. Supreme Court has a power and constitutional authority that is equivalent to that of their Congress and Government, having the ability to judge whether laws passed by the Congress are ‘constitutional’ – i.e. consistent with the rights and principles set forth in their written Constitution. (This is all as opposed to the approach taken by our unwritten British Constitution, according to the conventions of which our Judiciary – including our relatively new Supreme Court – is subordinate to our legislative/executive Parliament, a concept known as ‘Parliamentary Supremacy’.)

It was in this context that Roe v. Wade, the court case that we discussed recently and through which the legalisation of abortion was imposed in all the American States (hitherto having had differing laws regarding it), occurred. Since then, the legal state of abortion has remained set in juridical aspic, as political avenues for abortion reform were narrowed or blocked.

There remained only four areas in which American politicians could affect any change with regards to abortion:

  • Funding of abortion through international development or domestic healthcare spending
  • Regulation of abortion practices and facilities
  • Affirmations of unborn personhood
  • Appointment of Supreme Court Justices

Normally, political controversies in the U.S. have concentrated on the first of these two areas. Since promotion of abortion had become an article of faith in the Democratic party, and opposition to it a fundamental principle in the Republican party, Democratic administrations and legislative majorities on the Federal and State level have enacted permissive policies and laws (or have penalised right-to-life groups), and their Republican counterparts have enacted restrictive ones.

On the Federal level, the ‘Helms Amendment’, an amendment to the Foreign Assistance Act by Senator Jesse Helms in 1973, forbids the use of foreign aid funds from the Federal Government to be used to pay for abortions as a method of family planning.

Similarly, in 1984, President Ronald Reagan introduced the ‘Mexico City Policy’, a rule that effectively bans non-governmental organisations (NGOs) that receive foreign funding from the Federal Government from promoting abortion services (again, as a method of family planning) even with non-US government funds. So, any group that does so loses support from the U.S. Government. Since then, this policy has always been reinstated and rescinded by Executive Order (legally-binding orders made by the President to Federal agencies) depending on whether the Presidency has been won by a Republican or a Democrat.

Due to the limitation in both the Helms Amendment and the Mexico City Policy that they only exclude funding for abortions that are for the purposes of ‘family planning’, they do not stop funding for the practice or promotion of abortion for ‘hard cases’ such as pregnancy after sexual assault, or for the sake of safeguarding the health or life of the mother (even though these cases are practically non-existent).

In 1976, another amendment called the ‘Hyde Amendment’ (after its chief sponsor, Congressman Henry Hyde) also barred the use of federal funds to pay for abortion unless it was deemed necessary to save the life of the mother. This effects Medicaid, which is one of the limited social health insurance schemes of the U.S. Government for those who cannot afford healthcare coverage. It was changed in 1993 to include pregnancies that had arisen from acts of incest or rape. Rather than being a permanent law however, it is a temporary provision that needs to be renewed by Congress. In 1981, the Congress additionally banned the use of military health insurance from being used to procure abortions.

A similar amendment to that of Congressman Hyde was proposed during the debate over President Barack Obama’s Affordable Health Care for America Act (popularly known as ‘Obamacare’), called the ‘Stupak-Pitts amendment’. This would have barred the use of federal funds in the new healthcare framework to pay for abortion through health insurance except in the hard cases (live of the mother, rape, and incest). It was dropped when Obama signed an Executive Order that (it was claimed) achieved the same goals as the amendment itself.

Two actual laws passed by the U.S. Congress that have assisted the right-to-life cause have been the Partial-Birth Abortion Ban Act in 2003, which abolished the barbaric practice of late term Dilation and Extraction (D&X), and The Unborn Victims of Violence Act in 2004, which recognises a baby in the womb as a legal victim if they are injured or killed during the commission of any of over 60 listed federal crimes of violence.

On the other side, the abortion lobby have mollified right-to-life laws (as with their relaxation of the Hyde amendment), and they tried to pass the Freedom of Choice Act in the early part of the Obama Presidency, but this failed, as did a similar Bill in 2013. More recently, Obama has tried to introduce a rule that would prevent States from withdrawing funds from Planned Parenthood (on which, more in a bit), but far from being (as has been hysterically reported) a ‘permanent’ bar on this happening, this has not even come out of its consultation stage.

Meanwhile, State Governments have passed laws that have restricted abortion in accordance with the narrow terms of Roe v. Wade, either through (like the Congress) passing laws that withdraw funding, require parental notification for abortions on minors, or have required women to undergo ultrasounds, or increase regulatory requirements on abortion facilities. Many of these have been shown to be effective in reducing abortion rates, and some States have made it almost impossible for abortions to occur there. Other more pro-abortion States have made abortion as readily supported and available as possible, whilst penalising right-to-life activists for their activities.

Into this context, steps President-Elect Donald Trump. This is a man who has been very much in favour of legalised abortion, even supporting the legality of partial-birth abortion. His positions since have hardly been completely coherent. Nonetheless, Trump says that due to the experience of friends of his, he has changed his mind on the subject. There is plenty of reason to be sceptical about this, but this may of course be immaterial given the official position he holds, and to which the Republicans are likely to hold him accountable. So, let’s for the sake of argument say that he genuinely has changed his mind.

As President then, what can Trump do? Immediately, he can reinstate the Mexico City Policy, as George W. Bush did in 2000 before it was rescinded again by Barack Obama in 2008. This would fit the pattern of the last three decades of political practice. More than that, however, with a Republican Congress (though not a super-majority in the Senate), he could try putting through laws that withdraw funding from organisations that perform abortions, such as Planned Parenthood, the largest abortion ‘provider’ in that country. Republican attempts to do so (frustrated by President Obama) became a sharp controversy in the previous Congress in the wake of the allegations of Planned Parenthood staff selling the body parts of aborted babies.

Ultimately, however, the biggest single change that Trump might actually accomplish, especially with a Senate with a Republican majority, would be to change the make-up of the Supreme Court.

In the last year, Justice Antonin Scalia, one of the conservative members of the Supreme Court and one who opposed Roe v. Wade, passed away. Normally, under a Democratic President such as Obama, he would have been replaced almost straight away by a liberal or moderate liberal. In this case, however, since he was so close to the end of the Obama Presidency, the Senate Republicans chose to refuse to consider any nominee that was put forward.

As it turned out, this was a politically astute decision. It means now that the Republicans will probably be able to replace Scalia with another conservative, assuming that Trump fulfils his promise to appoint one. Moreover, Justice Clarence Thomas, the sole remaining conservative Justice who at 68 is senior enough to retire, could do so and be replaced with another conservative by Trump in the next few years.

For right-to-lifers, these would certainly mean the nominations of Judges on the Supreme Court who may be interested in overturning Roe v. Wade, a possibility that Trump essentially reaffirmed to CBS’s ’60 Minutes’ at the weekend, when he promised nominees who were ‘pro-life’.

This pledge could be considerably important, not just because it would mean replacing Scalia and possibly Thomas, thus cementing the existing judicial pro-life presence, but because it could mean positively moving the court in a more pro-life direction overtime.

Three of the Justices who support Roe v. Wade are old, and possibly approaching retirement. Ruth Bader Ginsburg, who is 83, refused to retire during the Obama Administration to make way for a younger liberal justice, but said (probably rhetorically) that she would resign rather than serve underneath a President Trump. Even if she did not choose to leave the Court, the chances of her dying or having to leave due to ill-health, only increase with time. Another pro-Roe Justice, Stephen Breyer, is 78, as is the ‘moderate’ swing vote on the Court, Anthony Kennedy.

Even if only one of these three left the Court, it would immediately create a majority for the first time who would reverse Roe at the earliest opportunity, something that could occur very shortly afterward with the right case brought deliberately by right-to-life campaigners.

If this were to happen, it would be a cultural and political earthquake. It would allowing States to once again decide whether they wish to have permissive or restrictive abortion legislation, or abolish abortion altogether. It would also open up a battle in the U.S. Congress by which there might be Federal laws passed on the availability of abortion, which might produce country-wide limits. In short, this would open up a democratic debate that, until now, has been suppressed by the Roe decision.

You may think that I’m getting too carried away here by the possibility of such astonishing changes. As balance then, I should note that whatever Trump and the Republicans want to do, they may not have much time in which to do it. For either of the two main parties to enjoy not only control of Congress but the Presidency as well, is unusual, and does not tend to last very long.

In 2008, the popularity of President Obama helped give the Democrats not only a majority in the House, but a ‘super-majority’ (over 60 votes) in the Senate. A super-majority is so called because it allows for the majority in the Senate to vote for ‘cloture’ (the stopping of a Senator’s speech), which prevents Senators from blocking legislation by ‘filibuster’ (that is, by continuing to talk until the legislation they oppose runs out of time and can make no further progress). Yet this zenith of electoral success only lasted for less than two years before the Democrats lost it in the 2010 mid-term Congressional elections.

The reason such dominance is so tenuous is that when any one party possesses it they are then (rightly or wrongly) held accountable for everything that goes wrong in Washington. Just as the Democrats lost their control in 2010, then, so the Republicans could lose theirs in 2018, either to voter disillusionment or even boredom. Congressional Republicans should note this if they hope to get their agenda passed.

Either way, the next two-to-four years will be interesting, especially for right-to-life issues in the United States. Only one concern from my perspective, remains: if Trump does make profoundly pro-life changes, the moral legitimacy of these could be undermined by virtue of who is making them. Trump is so personally compromised in his bullying and sexist actions, that the right-to-life cause itself risks being tainted by association. This not only affects the American debate, but by implication the debate around the rest of the world, especially the Anglosphere, which of course includes the U.K. Any law passed by him, and any decision made by any Justice appointed by him, could be at least to some extent, discredited.

With that serious caveat (as well as the general objections we have to make to Trump’s revolting character, and his lack of intellect or experience), and especially if we consider what could have happened had this been a Clinton victory with a Democratic Congress, we might welcome the outcome of this Election. The Trump Presidency can be cautiously welcomed as one that, if it experiences the best of political and historical fortune, could be positively transformative not just for America, but for the whole world. We must simply hope that Trump proves to be a better President than he hitherto has been a human being.