Even after the verdict against Donald Trump in New York, Joe Biden's poll numbers continue to sink. It has become ever clearer, then, to the Democrats that abortion is the one ace they still have to play. And Trump, with his mind gloriously elsewhere, is drifting into their trap.
The former president has managed, of all things, to bring back the famous debate between Abraham Lincoln and Stephen Douglas during another grave moment of our history—and has taken Douglas' side of the argument. Douglas' Democratic Party was deeply divided, North and South, on the issue of slavery. He famously said "I don't care" whether slavery is voted up or down in the new Territories of Kansas and Nebraska, as long as it's voted on by a majority of the people in a democratic way. He was "pro-choice" on slavery.
But Lincoln pointed out that his opponent had indeed reached a moral judgment. If we thought there was something morally "wrong," say, with parents abusing a child, it would be something that no parent would be free to choose to do. When Douglas insisted that people were free to choose slavery, he was saying that slavery stood for him in the class of things "not wrong."
Donald Trump said that it is a "beautiful thing" that people are free now to vote abortion up or down in the separate states. In contrast to his position in 2016, he affects now not to "care" whether unborn children are being snuffed out in large numbers in New York and other states as long as it is being done by the laws enacted by the local voters.
But that stance sets Trump up for a probing question from one of the moderators at Thursday's debate: If he concedes that people may regard abortion as something rightful for themselves, why should they lose that right simply because they move to another state? If Trump thinks it a rightful thing to choose, why would he forbid it to them?
Back in 2016 Trump seemed to have a clear, ringing answer. Who can forget his searing rejoinder in the debate with Hillary Clinton:
If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.... Hillary can say that that's OK. But it's not OK with me. Because based on what she is saying...you can take the baby and rip the baby out of the womb in the ninth month on the final day.
Is that practice no longer "not OK" with him? But no. Trump pointed out in a recent interview that the laws in New York have gone well past allowing abortion up to birth. They have made allowance for withholding care from a child who survives an abortion. But there is Trump's key, his opening to turn the tables, to shift the argument to the most embarrassing and difficult point for the Democrats to defend.
Three times over the past nine years Democrats in the House voted virtually unanimously to reject the move to restore penalties, civil and criminal, for killing a child born alive after an abortion. The Born-Alive Infants Protection Act, passed in 2002, omitted the penalties for the sake of averting a veto from President Bill Clinton when it was first introduced. Despite Democratic reluctance the bill still passed, even with Democrats in control of the Senate. But in 2010 the revelation came of the killings done in Dr. Kermit Gosnell's clinic in Philadelphia, where the necks of babies were snipped in late-term abortions. That propelled a movement to restore the serious penalties for killing a child born alive during an abortion. The last time a bill to do so was voted on in the House, in January 2023, the vote was 220-210 with every Democrat save one in opposition.
There is the place to begin. Trump can truly appeal now to people on both sides: even pro-choicers would come together with pro-lifers to hold that the right to abortion surely must find its limit at the live birth of a child. His line is that we have been so divided as a people on this question, with the matter ruled on by judges, that we need a conversation before we start legislating again. And what better place to begin? He can put the question directly to Joe Biden at the debate: Does he stand with his party in holding that the right to abortion covers the right to kill the child born alive? That question would not only jar Biden; it would embarrass most of the major media, for they have blocked out this story for nine years to provide cover for the Democrats.
But once we get clear that the right to abortion ends at birth, that sets the frame for a conversation to come, for it makes it clear what we're talking about. As Justice Samuel Alito observed in the Dobbs v. Jackson case on abortion, if the law can protect the child in the womb at the point of viability, when the child may be sustained outside the womb, why can it not protect the same child before viability? It was, after all, the same child. Whether we are talking about an unborn child at 16 weeks or 6 weeks, isn't it clear that we are talking about the same small human being?
In getting clear on what we are doing, Trump could hope to persuade pro-choicers to take, over time, a second or third step, to extend protections for that unborn child. "But if we fail to persuade you," he may say, "we still will have saved a handful of lives from those 900,000 abortions performed every year in this country." And Trump could rightly say that we find nothing trifling in saving that handful of lives.
Hadley Arkes is the Founder and Director of the James Wilson Institute on Natural Rights and the American Founding.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
