The U.S. Supreme Court decision in Dobbs vs. Jackson Women’s Health which was issued electronically is seen on June 24, 2022 in Washington, D.C. The Court’s decision in Dobbs vs Jackson Women’s Health overturns the landmark 50-year-old Roe vs Wade case and erases a federal right to an abortion. (Photo by Chip Somodevilla |Getty Images)
This is one in a series of States Newsroom reports on the major policy issues in the presidential race.
WASHINGTON — This year’s election marks the first time voters are casting ballots for president since the U.S. Supreme Court overturned the constitutional right to an abortion and made reproductive rights a pivotal issue for many voters.
Democratic nominee Kamala Harris and Republican candidate Donald Trump have spoken about reproductive rights and abortion access numerous times during the last few months.
Trump’s stance has evolved during his bid for the White House. He now contends he wouldn’t sign legislation implementing nationwide abortion restrictions and wants regulation left up to the states.
Harris has consistently said a nationwide law guaranteeing access would ensure the choice is left up to women, not politicians.
“I pledge to you, when Congress passes a bill to put back in place the protections of Roe vs. Wade, as president of the United States, I will proudly sign it into law,” Harris said during the September presidential debate.
Trump patted himself on the back during the same debate for nominating three justices to the Supreme Court who later ruled with their conservative colleagues that the Constitution didn’t provide the privacy rights that two former high court rulings said insulated women’s choices about abortion.
“I did something that nobody thought was possible,” Trump said about nominating the three justices. “The states are now voting. What she says is an absolute lie. And as far as the abortion ban, no, I’m not in favor of (an) abortion ban. But it doesn’t matter because this issue has now been taken over by the states.”
Harris had just said that Trump would sign a nationwide abortion ban if elected and cited Project 2025, the blueprint for a second Trump administration released by the conservative-leaning Heritage Foundation. Trump and his campaign have repeatedly tried to distance themselves from the document and many of its proposals.
Many politicians have misrepresented the Supreme Court’s ruling two years ago as sending abortion regulation back to the states. What the conservative justices wrote was that ending Roe vs. Wade meant the “authority to regulate abortion is returned to the people and their elected representatives.”
That, of course, includes Congress and the president.
Trump position varies
Trump’s stance on abortion hasn’t always been linear or consistent. He told Republicans earlier this year that they should avoid discussing the topic in order to win elections, while also courting organizations that view him as one avenue to ending abortion outright.
Trump got himself into hot water with several anti-abortion organizations and conservative Republicans in April when he announced he didn’t want Congress to take action on a nationwide law.
Trump had previously said he would support a 16-week nationwide ban. He reiterated in his April announcement that he supported exceptions to state abortion bans in cases of rape, incest and the life of the pregnant patient.
Susan B. Anthony Pro-Life America President Marjorie Dannenfelser released a statement following Trump’s April announcement that she was “deeply disappointed.”
“Saying the issue is ‘back to the states’ cedes the national debate to the Democrats who are working relentlessly to enact legislation mandating abortion throughout all nine months of pregnancy,” Dannenfelser wrote. “If successful, they will wipe out states’ rights.”
About a month later, in May, Trump, Dannenfelser, President of the Family Research Council Tony Perkins and South Carolina Republican Sen. Lindsey Graham had a “terrific meeting,” according to a statement released afterward.
Then, this summer, Trump muddied the waters on his abortion stance yet more, when he spoke to an organization in June that describes abortion as the “greatest atrocity facing” the United States that should be “eradicated entirely.”
“These are going to be your years because you’re going to make a comeback like just about no other group,” Trump said to The Danbury Institute’s inaugural Life & Liberty Forum. “I know what’s happening. I know where you’re coming from and where you’re going. And I’ll be with you side by side.”
Then, most recently, Trump posted on social media during the vice presidential debate in early October that he would veto any nationwide abortion restrictions.
Trump wrote in all capital letters that he “would not support a federal abortion ban, under any circumstances, and would, in fact, veto it, because it is up to the states to decide based on the will of their voters (the will of the people!).”
Trump added that he didn’t support access to abortion during the seventh, eight or ninth months of pregnancy, nor did he support killing babies, which is already illegal.
During 2021, about 93% of abortions took place within the first 13 weeks of gestation, according to data from the Centers for Disease Control and Prevention analyzed by the Pew Research Center.
Another 6% of abortions took place between 14 and 20 weeks with the remaining 1% taking place after 21 weeks gestation, according to the data.
“Almost half of individuals who obtained an abortion after 20 weeks did not suspect they were pregnant until later in pregnancy, and other barriers to care included lack of information about where to access an abortion, transportation difficulties, lack of insurance coverage and inability to pay for the procedure,” according to analysis from KFF Health.
Harris position
Harris has repeatedly criticized Trump for celebrating the Supreme Court’s decision to end Roe vs. Wade and said during the presidential debate that state restrictions have harmed women in innumerable ways.
“Trump abortion bans that make no exception even for rape and incest,” Harris said. “Understand what that means — a survivor of a crime, a violation to their body, does not have the right to make a decision about what happens to their body next. That is immoral.
“And one does not have to abandon their faith or deeply held beliefs to agree the government, and Donald Trump certainly, should not be telling a woman what to do with her body.”
Harris has called for Democrats to eliminate the Senate’s legislative filibuster to ease the passage of a bill that would restore nationwide abortion protections.
That Senate rule requires at least 60 lawmakers vote to advance legislation before that bill can move on to a simple majority passage vote. It is different than the so-called talking filibuster, when one senator, or a group of like-minded lawmakers, talk on the floor for hours to delay a vote.
Democrats would have to maintain their majority in the Senate against long odds to actually carve out an exception to the legislative filibuster, in order to pass a bill restoring Roe vs. Wade. Democrats would also need to regain control of the House of Representatives.
A divided Congress, or a few Democrats objecting to rule changes in the Senate, would hinder Harris’ efforts to sign nationwide abortion protections.
Democrats tried to pass legislation through the Senate that would have provided nationwide protections for abortion when they had unified control of government in 2022, but were blocked by the filibuster.
Maine Republican Sen. Susan Collins, Virginia Democratic Sen. Tim Kaine, Alaska GOP Sen. Lisa Murkowski and Arizona independent Sen. Kyrsten Sinema later introduced a bipartisan bill that would have had a similar result, but it wasn’t scheduled for a floor vote.
The legislation of two years ago likely would again fail to advance if Democrats sweep in the November elections, unless they carved out an exception in the Senate filibuster.
Swing state voters
Harris’ and Trump’s stance on abortion access will likely play a role in determining which candidate wins the Electoral College in crucial swing states like Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin.
Democrats are optimistic that abortion access ballot questions in 10 states will bolster Harris’ chances through increased voter turnout and higher spending by reproductive rights organizations.
While many of the referendums are in solidly blue or red states, the proposals in Arizona and Florida could affect turnout and motivation.
Louis Jacobson, senior columnist at Sabato’s Crystal Ball at the University of Virginia Center for Politics, wrote earlier this month that a key question on Election Day will be whether “abortion-rights advocates extend their perfect 7-for-7 record since Roe v. Wade was overturned.”
Voters will decide on numerous other ballot questions as well, including recreational cannabis, increases in the minimum wage and ranked-choice voting.
In an earlier post about the abortion ballot questions, Jacobson and Samantha Putterman wrote that “(e)very post-Roe measure has been on the ballot during a relatively low turnout election—either the November midterm, a primary ballot, or an off-year election.”
“Any measure that makes the ballot in 2024 will face voters in November of a presidential year, when turnout is far higher,” they wrote. “This has the potential to hurt abortion rights backers, because moderate and liberal voters have recently flexed their electoral muscles more when turnout is low.”
Public opinion polls conducted by the Pew Research Center for the past three decades have consistently shown support for keeping abortion legal outpacing support for making the procedure illegal in most or all cases.
The 2024 survey showed that 63% of people want abortion legal in most or all cases while 36% believe it should be illegal in all or most cases.