Trump says Republicans always wanted to leave abortion law to states. That's false.

WASHINGTON — Donald Trump is playing down the prospect of nationwide abortion restrictions, falsely saying Republicans have long sought to leave abortion law to the states.

“Sending this Issue back to the States was the Policy of the Republican Party and Conservatives for over 50 years, due to States’ Rights and 10th Amendment, and only happened because of the Justices I proudly Nominated and got Confirmed,” Trump wrote on social media. It was one of many posts and statements in which he has made that claim amid national backlash to the ruling the Supreme Court he built issued to end federal abortion rights in 2022 and a recent, unpopular Alabama court decision that embryos are children.

Trump’s latest claim is belied by a long history of his party’s fighting to restrict abortion nationally.

In fact, it would come as news to then-President Trump, who in 2018 championed legislation in Congress to criminalize abortion nationwide after 20 weeks of pregnancy. At the time, he called a 20-week ban “important legislation that would protect our most vulnerable” and said it was “disappointing” that the bill failed to overcome a filibuster in the Senate.

Trump’s apparent shift comes as he seeks to neutralize the issue. He has publicly expressed fears that it could cost him the election, potentially “handing Democrats their dream of the House, Senate, and perhaps even the Presidency.” Democrats say Trump is now lying and would sign bills to criminalize abortion if a GOP-led Congress passed them, which he hasn’t ruled out doing.

“If MAGA Republicans put a federal ban on his desk, he’d sign it,” President Joe Biden said in a video on X.

Before the Supreme Court overturned Roe v. Wade, abortion rights were constitutionally protected and Republicans were shooting blanks with a series of anti-abortion-rights bills, seeking to rally social conservatives without risking much of a backlash among proponents of legal abortion, including many swing voters. Now, they’re firing with live ammunition. This year’s presidential election will be the first in half a century in which voters’ decisions will determine whether or not abortion is legal.

Sen. Ted Cruz, R-Texas, an outspoken abortion-rights opponent who faces a competitive re-election bid, said abortion rights aren’t in danger at the federal level because the 60-vote filibuster rule will give Democrats the power to block anti-abortion-rights bills in Congress.

“At the end of the day, there are not the votes in the Senate to pass that or anything else like that,” he said. “In order to pass legislation in the Senate, it takes 60 votes. Zero Democrats will vote for it.”

Top abortion foes say it’s a federal issue

But Republicans are also navigating a passionate base of social conservatives who want federal restrictions on abortion.

As prominent abortion-rights opponents are quick to note, the shift toward a states-rights stance on abortion is new for the GOP, which has used its House and Senate majorities for decades to push for nationwide limits. The Republican Party has also repeatedly included abortion restrictions that would apply nationally in its platform.

“Since 1984, the GOP platform has affirmed that 14th Amendment protections apply to unborn babies and endorsed congressional action to clarify this fact through legislation,” Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, said in a statement to NBC News. “Republicans led the charge to outlaw barbaric partial-birth abortions federally, and both chambers have voted multiple times to limit painful late-term abortion. The Senate voted on this most recently in 2020. In January 2023, House Republicans also voted to protect infants born alive during an abortion.”

The 2022 ruling, Dobbs v. Jackson Women’s Health Organization, “rightfully returned the power to legislate about abortion to the people and their elected representatives, at both the state and the federal levels,” Dannenfelser said. “Where you live shouldn’t determine whether you live.”

During Trump’s presidency, House Republicans voted overwhelmingly in 2017 to pass a Trump-endorsed bill to outlaw abortion after 20 weeks, which was filibustered months later by Senate Democrats. The cause predates Trump: In 2015, the Republican-led House passed a 20-week abortion ban, which was similarly scuttled by Democrats in the Senate.

In the run-up to the Supreme Court’s landmark decision in 2022, GOP lawmakers explicitly asked justices to give them power to legislate on abortion. In a 2021 amicus brief, 228 Republicans in Congress told the justices that the Dobbs case “provides the Court a chance to release its vise grip on abortion politics, as Congress and the States have shown that they are ready and able to address the issue” based on public opinion and science.

Justice Kavanaugh said ‘the States or Congress’ can regulate abortion

The court obliged, with Justice Samuel Alito writing for the five-member conservative majority in 2022 that “the people and their elected representatives” are free to regulate abortion.

“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” he wrote. (“Casey” is Planned Parenthood v. Casey, the 1992 ruling in which the Supreme Court upheld its ruling in Roe v. Wade.)

Justice Brett Kavanaugh was more explicit in his concurring opinion that Congress has a role, writing that the Constitution “is neutral” on abortion and doesn’t prevent Congress from legislating it.

“That issue will be resolved by the people and their representatives in the democratic process in the States or Congress,” he wrote.

Sen. Josh Hawley, R-Mo., who faces re-election this year in red-leaning Missouri, said that he continues to favor abortion restrictions at the federal level but that voters will always have the final say.

“Let the voters vote on this and talk about it. And debate it. And vote again, if they want to,” Hawley said. “I support a 15-week ban, but that’s not going to pass.”

The 15-week ban is authored by Sen. Lindsey Graham, R-S.C., who continues to advocate for it but hasn’t reintroduced the bill in this session of Congress. As some in the GOP seek to avoid the issue, Graham declined to say whether or when he would bring it up it next.

The No. 3 Senate Republican, John Barrasso of Wyoming, who is running to ascend to the whip’s position next year, said he backs Trump’s position and downplayed the prospects of a Senate vote on the 15-week national ban.

“I don’t expect it coming up for a vote,” Barrasso said in mid-April after Trump suggested that abortion should be a state issue. “I support the president’s position.”

Barrasso co-sponsored Graham’s 15-week ban in 2021, saying in a statement that “Congress must protect innocent human life.”

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