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In an interview with Time, former President Donald Trump was asked, with the overturning of Roe v. Wade, if states should monitor women’s pregnancies and/or prosecute women who get an abortion in violation of state law. Trump said “they might,” but that’s for each state to decide.
In several campaign speeches, however, President Joe Biden has twisted Trump’s words, claiming that Trump said “states should monitor women’s pregnancies and prosecute those who violate abortion bans.” (Emphasis is ours.) In the Time interview, Trump said his opinion about what ought to happen is “totally irrelevant, because the states are going to make those decisions.”
Trump’s three appointments to the U.S. Supreme Court paved the way for overturning Roe v. Wade, the court’s 1973 decision establishing a constitutional right to abortion. Since the court overruled Roe in June 2022, the jurisdiction on abortion rights has returned to the states.
While no states currently have laws that explicitly call for prosecuting women who get abortions in violation of state abortion bans, some state elected officials are advocating that. And some abortion rights advocates worry that since some state laws do not contain specific prohibitions against prosecuting women who get abortions, aggressive prosecutors might attempt to do that. Others are concerned that states with so-called fetal “personhood” laws might have left the door open for prosecutors to seek criminal punishment of women, particularly those who self-manage abortions through medication.
Nonetheless, Trump did not say states should prosecute women who have abortions, as Biden has repeatedly claimed on the campaign trail. In fact, in a March 2016 campaign statement, Trump said that he does not support criminal prosecution of women who get abortions. Now, Trump says the issue should be left up to the states.
What Trump Said
As a presidential candidate in 2016, Trump once said — and then quickly walked back — that women needed to face “some form of punishment” for violating abortion bans. After facing criticism, Trump retracted the statement the same day, saying that the physician performing the procedure in violation of a state ban should be held legally responsible — not the woman.
“The woman is a victim in this case as is the life in her womb,” Trump said in a March 30, 2016, statement.
Since then, Roe v. Wade was overturned. This election cycle, Trump faced questions about whether he would support a national abortion ban, and if so, at what point in a pregnancy and with what exceptions.
On April 8, Trump released a four-minute video on Truth Social outlining his position on abortion, saying that he would leave the issue to the states. Two days later, he definitively said “no” when asked whether he would sign a national abortion ban if Congress passed one.
“The states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land,” Trump said. “In this case, the law of the state. Many states will be different. Many will have a different number of weeks or some will have more conservative than others, and that’s what they will be.”
In the Time interview, Trump was asked about several potential state policies — such as punishing women who violate abortion bans or monitoring pregnancies to police whether a prohibited abortion occurs — and whether he would support them. (In his response, Trump also repeats his false claim that “every legal scholar … wanted that issue back at the states.” Legal scholars told us that was “utter nonsense” and “patently absurd.”)
Time, April 12: Are you comfortable if states decide to punish women who access abortions after the procedure is banned?
Trump: Are you talking about number of weeks?
Time: Yeah. Let’s say there’s a 15-week ban—
Trump: Again, that’s going to be—I don’t have to be comfortable or uncomfortable. The states are going to make that decision. The states are going to have to be comfortable or uncomfortable, not me.
Time: Do you think states should monitor women’s pregnancies so they can know if they’ve gotten an abortion after the ban?
Trump: I think they might do that. Again, you’ll have to speak to the individual states. Look, Roe v. Wade was all about bringing it back to the states. And that was a legal, as well as possibly in the hearts of some, in the minds of some, a moral decision. But it was largely a legal decision. Every legal scholar, Democrat, Republican, and other wanted that issue back at the states. You know, Roe v. Wade was always considered very bad law. Very bad. It was a very bad issue from a legal standpoint. People were amazed it lasted as long as it did. And what I was able to do is through the choice of some very good people who frankly were very courageous, the justices it turned out to be you know, the Republican—
Time: States will decide if they’re comfortable or not—
Trump: Yeah the states—
Time: Prosecuting women for getting abortions after the ban. But are you comfortable with it?
Trump: The states are going to say. It’s irrelevant whether I’m comfortable or not. It’s totally irrelevant, because the states are going to make those decisions. And by the way, Texas is going to be different than Ohio. And Ohio is going to be different than Michigan. I see what’s happening.
Trump later claimed in a May 5 post on Truth Social that his words were being misconstrued in the press.
“I never said that ‘some states may choose to monitor women’s pregnancies to possibly prosecute for violating any abortion bans.’ This was made up by Democrats and the Fake News Media,” Trump claimed in the social media post.
But that is precisely what Trump said, as the transcript from the Time interview shows.
And Trump has since reiterated that point in an interview with WGAL News 8 in Lancaster, Pennsylvania, on May 7. WGAL anchor Barbara Barr told Trump, “There are ads running that say that you would support certain states with bans monitoring a woman’s pregnancy.”
Trump responded, “Well that would be up to the states, again. They will make a decision as to how they do it. So far, a lot of states are coming in without that, without any of that. And that would all be up to the states. Everything having to do with that question is now in the hands of the states, which is where every legal scholar – and that’s on both sides, Democrat, Republican, liberal, conservative – every legal scholar wanted it to be in the hands of the states.”
Again, Trump’s claim about “every legal scholar” wanting the issue to return to the states is false.
Nonetheless, on two occasions, when asked about states monitoring pregnancies, Trump has responded that those decisions would be left up to the states. But Trump never said that’s what he thinks states should do.
Biden Twists Trump’s Words
The Biden administration quickly seized on Trump’s remarks in the Time interview, with varying degrees of accuracy.
“Just this week, in an interview, he said states have the right to monitor pregnant women to enforce these bans and states have the right to punish pregnant women for seeking out abortion care,” Vice President Kamala Harris said in Jacksonville on May 1, accurately reflecting Trump’s interview.
But the same day at a campaign event in Washington, D.C., Biden took it one step further.
“And then Trump did a long interview in Time magazine. I — it’s coming out. You got to read it. It’s a mandatory reading. And … he said in that magazine — he said states should monitor women’s p- — now, get this: States should monitor women’s pregnancies and prosecute those who violate abortion bans.”
Biden repeated the claim at a campaign reception in Seattle on May 12.
“Trump did a long interview in Time Magazine,” Biden said. “You ought to read it. He said, quote, ‘states should monitor women’s pregnancies and prosecute those who violate the bans.’ Monitor women’s pregnancies? What have we become here?”
We should note that Biden’s carefully worded line claims Trump said states should prosecute “those who violate abortion bans,” not necessarily women who get abortions in violation of state bans. Biden made that connection, however, in remarks at a campaign event on May 12 in Medina, Washington, when he claimed that in the Time interview, Trump “said, ‘The states should monitor women’s pregnancies’ … ‘monitor women’s pregnancies and prosecute those who seek help.’ Monitor women’s pregnancies? Prosecute them?”
Other Democrats echoed Biden’s claim. For example, Michigan Gov. Gretchen Whitmer claimed Trump “said again that women should be punished for having abortions. And he’s okay with states monitoring pregnant women to stop them from having abortions.” New York Gov. Kathy Hochul cited Trump’s Time interview as evidence that he “endorses punishing women who get an abortion.”
But again, those were not Trump’s words, and the Democrats’ claims twist his message.
Trump said his opinion about prosecuting women who violate state abortion bans was “irrelevant” because those decisions should be left to the states. Likewise, Trump said states “might” decide to monitor women’s pregnancies and “you’ll have to speak to the individual states.” That’s different from Trump advocating that states enact such laws.
Then again, Trump isn’t advocating women should not be prosecuted – which was his position in the first campaign. In 2016, he put out a formal position statement saying that he does not think women should be criminally prosecuted for violating abortion bans. Now, he has declined to state his opinion on the issue, saying only that states will decide.
State Laws
Whether states decide to monitor pregnancies to determine whether abortion bans are being violated and whether states will prosecute women who get an abortion are separate — though related — issues.
Most states require hospitals, facilities and physicians to provide information about abortions, with some requiring details such as a patient’s reason for seeking the abortion and whether the fetus was deemed viable. But we could not find any state laws that require monitoring of pregnancies for the purpose of policing abortion bans.
On May 9, Republican Sens. Katie Britt, Marco Rubio and Kevin Cramer introduced a bill that would — among other things — create a national pregnancy website to act as “a federal clearinghouse of resources available to expecting and postpartum moms.” A provision of the bill that talks about pregnant women voluntarily providing contact information to the website has some Senate Democrats concerned that it would “provide data to a potential Trump administration and potentially allow a government bureaucrat to follow up with them about the status of their pregnancy.” But the bill doesn’t call for a mandatory federal monitoring of pregnancies.
As for whether states might prosecute women who get an abortion in violation of state prohibitions, no state laws currently call for that explicitly. But in recent years, Republican lawmakers in several states have proposed that. And some state abortion laws are silent on the issue of prosecuting women who get prohibited abortions, raising concerns that aggressive prosecutors in those states might attempt to punish women who get an abortion that violates state law.
Jolynn Dellinger, a senior lecturing fellow at Duke Law School and the Duke Initiative for
Science and Society, and Stephanie Pell, a fellow in governance studies at the Brookings Institution and a senior editor at Lawfare, recently published an analysis in the Duke Journal of Constitutional Law and Public Policy looking into whether women could be prosecuted for self-managing their abortions through medication.
That is especially relevant, Dellinger said, given that more than 60% of abortions are performed with medication and as self-managed abortions have become increasingly more common, “especially in ban states where the provision of care has been criminalized.”
“Our analysis indicated that, in spite of the popular narrative that women will not be prosecuted for violating abortion laws, many of the existing laws do not explicitly prohibit such prosecutions,” Dellinger told us via email. “Florida’s 6-week ban, for example, broadly prohibits and criminalizes abortion and does not include any provision that would exempt women from prosecution. In these circumstances, we are concerned that a prosecutor could exercise discretion to bring charges against a pregnant person who self-manages abortion with medication.”
A law in Nevada, for example, criminalizes some self-managed abortions, she said. According to the Nevada law, it is a felony if a woman, not acting under the advice of a physician, “takes or uses, or submits to the use of, any drug, medicine or substance, or any instrument or other means, with the intent to terminate her pregnancy after the 24th week of pregnancy.”
In addition, Dellinger said, “Ban states that have personhood laws also raise issues about the interplay between abortion laws and homicide codes.”
It remains to be seen how those laws will play out, and whether women who obtain abortions might be charged criminally and convicted. It also remains to be seen whether states may pass laws to monitor pregnancies in order to enforce abortion bans. But Trump never said states “should” enact such laws — only that they might, and that such decisions ought to be made at the state level.
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