Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.
A CNN interview with GOP presidential hopeful Vivek Ramaswamy capped off a dismal election night for Republicans on Tuesday —Ramaswamy implausibly suggested that Republicans could right the ship on abortion if they simply talked more about sexual responsibility for men.
In some ways, it’s not all that surprising that Ramaswamy’s repeated insistence that men’s sexual responsibility should be “codified in the law” was the best he could come up with, because these elections could not have gone much worse for Republicans and their allies in the antiabortion movement.
In Kentucky, the state’s attorney general, Daniel Cameron, who had stood out as the state’s most vocal defender of sweeping bans, took a beating from incumbent Democrat Andy Beshear, who had labeled Cameron an antiabortion extremist. As the Washington Post noted, the first person Beshear thanked after his family in his victory speech, was Hadley Duvall, a young woman who appeared in a viral Beshear ad that featured her sharing a wrenching story about being sexually assaulted by her stepfather—and her calling out Cameron for opposing rape and incest exceptions. “Because of her courage, this commonwealth is going to be a better place,” Beshear said.
Ohio Republicans seeking to stop Issue 1, a state amendment enshrining reproductive rights in the constitution, tried making it harder for voters to weigh in, first attempting to raise the threshold for successful ballot initiatives, then relying on a misleading and inaccurate description of the ballot measure to lead voters astray. More than 55% of voters in deep red Ohio rejected the effort.
Virginia Governor Glenn Youngkin tried to put Republicans in his state on the offensive, embracing a 15-week “limit” and insisting that Democrats who opposed it were the real extremists. That effort backfired too, with Virginia Democrats taking control of the state legislature.
But these defeats aren’t the seismic victory for abortion rights that Democrats may wish they were. Just because Republicans don’t seem to know how to win over voters doesn’t mean the GOP and the antiabortion movement don’t know where to go next. They do.
While GOP presidential candidates are facing tough questions about the electoral viability of their positions on abortion, plans are already in place to federalize the issue and ignore the will of voters. The beauty of these plans, for Republicans and for leaders in the antiabortion movement, is that they rely not on voters but on a 2024 victory for former President Donald Trump and the control of the Supreme Court that his first term already guaranteed.
The Heritage Foundation’s Project 2025 a presidential transition plan vetted and crafted by more than 70 conservative and pro-life groups, details an abortion policy focused almost entirely on the operations of the Department of Justice in a second Trump term. Project 2025 outlines how to stop enforcement of the federal Freedom of Access to Clinic Entrances Act, which would make it easier for protesters to block and intimidate patients entering clinics.
More centrally, Project 2025 insists that there is already a de facto federal ban on abortion, whether voters like it or not: the Comstock Act, a 19th-century anti-vice law that conservatives argue makes it a federal felony to mail or receive items intended, designed, or adapted for abortion.
Heritage and its allies urge a future Trump DOJ to launch prosecutions against abortion providers and pill manufacturers for violating Comstock—even in states like California, Michigan or Ohio, where abortion is now protected.
On the campaign trail, Trump has struck a less extreme tone on abortion, but there is no reason to think that will last if he is in office, unable to run for reelection and dependent on his most ardent allies for support of his divisive plans to remake the DOJ and pursue revenge against his political opponents.
If Trump tried to execute Heritage’s plans, the Supreme Court would have to sign off too, but that is not hard to imagine either. The reinvention of Comstock is tailormade for this conservative majority, which identifies with textualism, a method of interpretation centered on what is said to be the plain meaning of a statute.
Other GOP strategies rely on the Supreme Court and control over red states legislatures. Not every state has a mechanism for voter-initiated ballot measures. Others, like South Carolina, cut voters out of the process of selecting and reconfirming state Supreme Court judges. So in states like Tennessee or South Carolina, it m ay not matter what voters think about abortion unless they are willing to elect a democratic legislative majority—no mean feat in gerrymandered conservative states, even those, like Florida or Georgia, that should be politically competitive.
Conservative states cannot only honor the wishes of abortion opponents but also try to project their power outside of state borders. Conservative attorneys general in states from Texas to Alabama to Idaho have claimed the authority to prosecute people for aiding women to travel to states where abortion is protected. Idaho has passed a law allowing
for prosecutions for people who help minors travel for abortion without parental consent.
Controlling red state legislatures affords abortion opponents a chance to experiment with these potentially laws, which might violate the right to travel and the Full Faith and Credit Clause, which requires states to honor judgments and statutes from other states. These experiments seem worth trying for the same reason that Republicans wish to resurrect the Comstock Act: Trump stacked the federal courts with conservative judges who might be open to novel and potentially unconstitutional enforcement strategies.
And then there are abortion pills. The Supreme Court is already considering taking up a case challenging the Food and Drug Administration’s authority to approve mifepristone, a pill used in over half of all abortions. A Trump FDA could entertain new restrictions on mifepristone or even revisit its approval.
There is a final linchpin to Republicans’ abortion plans: the 2024 presidential election. Polls show President Joe Biden trailing Trump in almost every battleground state despite the latter’s ever-growing list of criminal charges. Voters clearly care about abortion, but unlike in ballot initiative or state races, many might believe that another Biden term won’t make a difference.
It’s true that a second Biden term probably won’t lead to passage of a federal statute protecting abortion or restore Roe v. Wade. But what Republicans are banking on is that voters will believe that a second Trump term won’t further dismantle abortion rights — either because Trump has backed away from the antiabortion movement, or because the president would need Congress to introduce a meaningful ban.
The Project 2025 plan shows that many abortion opponents believe both of those assumptions are wrong. They think that Trump, once in office, will try to deliver for the social conservatives who have always been his most ardent supporters. And they believe that he will not need voters to do it as long as he has the keys to the White House and the support of the conservatives on the Supreme Court.
So as the dust settles after the 2023 election, Democrats may have won the first battle for the hearts and minds of voters when it comes to abortion, but if Trump wins a second term, abortion opponents feel confident they will win the war.
For more CNN news and newsletters create an account at CNN.com