In debate with Harris, Trump was dead wrong about abortion, with serious consequences | Opinion

Erwin Chemerinsky
·4 min read

Donald Trump’s statements about abortion in the debate with Kamala Harris on September 10 – like much of what he said – were false and misleading. Access to abortion is a major issue in the November elections. There are ballot initiatives in 10 states about abortion. Additionally, it is a crucial issue to many voters.

Harris made her position clear in the debate. She believes that the Supreme Court was wrong to overrule Roe v. Wade. She said that if Congress passes a bill to reinstate the protections that were guaranteed by Roe v. Wade, she would “proudly sign it into law” if elected president. She lamented the laws that have been enacted in over 20 states that prohibit all or almost all abortions, relating instances of pregnant women who were unable to get emergency medical care or forced to carry pregnancies to term because of restrictive laws.

What did Trump say? He said that the Democrats’ position on abortion is so extreme that they support “execution after birth.” Of course, that is absurd. No one favors execution of a baby after birth; that is murder in every state. Trump said the same thing in the debate with Joe Biden, when Trump declared the Biden Administration want to “take the life of the baby in the ninth month, and even after birth.” That is not the position of the Biden administration or Harris or abortion rights activists.

Opinion

Harris says she supports returning the law to what it was before 2022, where a woman had a right to an abortion until viability, when the fetus could live outside the womb. Abortions did not occur in the ninth month before Roe v. Wade was overruled and do not happen now in states like California where abortion remain legal.

Trump lauded the Supreme Court for overruling Roe and took credit for putting three justices on the Court who voted to do so. He said that “every legal scholar” favored leaving abortion to the states. That, too, is nonsense. Dozens of legal scholars signed briefs to the Supreme Court urging it not to overrule Roe v. Wade. Having attended countless academic conferences on abortion, I think it is clear that a significant majority of legal scholars – like the majority of Americans – favor a constitutional right to abortion.

In the debate, Trump several times said that it was good that the issue was returned to the states to decide whether and how to regulate abortion. By phrasing it this way, Trump obscured what this means: no longer is there a constitutional right to abortion. States can prohibit all or virtually all abortions. Fourteen states have prohibited all abortions except to save the life of the woman. Six other states prohibit abortions after the sixth week of pregnancy, a time before many women know that they are pregnant.

Kamala Harris expressed this well at the debate. “In over 20 states there are Trump abortion bans which make it criminal for a doctor or nurse to provide health care,” she said. “In one state it provides prison for life. Trump abortion bans that make no exception even for rape and incest. Which—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.”

The difference, of course, is not just between Trump and Harris, but between Democrats and Republicans. If Harris wins and Democrats gain control of both houses of Congress (and Democrats can overcome a Republican filibuster), there is sure to be a law passed to create a national right to abortion. Conversely, if Trump wins the election and Republicans take both the House and the Senate (and can overcome a Democratic filibuster), there is sure to be a law adopted that prohibits abortion everywhere in the country, which would preempt laws in California and other states that allow abortions.

The stakes for reproductive freedom could not be higher and the difference between the two candidates, and their parties, could not be clearer.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.

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