Trump's Confused Thinking on Abortion, Marriage Equality

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Stacy Wood and her wife Michele Barr leave San Francisco City Hall after getting married in San Francisco on June 26, 2015. Michael Dorf writes that Trump's pronouncements on abortion and marriage equality legislation make no sense. Abortion was "settled in the Supreme Court" 43 years ago. Marriage equality was settled a year and a half ago. Yet Trump thinks (or at least says) that the very recent decision is done, whereas the much older one is ripe for re-examination. Elijah Nouvelage/reuters

This article first appeared on the Dorf on Law site.

In the immediate aftermath of the election results, I wrote that I was cautiously optimistic that a Trump presidency would be merely conventionally Republican awful rather than uniquely Trumpian catastrophic.

The signs since then have been mixed. The selection of Paul Ryan's BFF Reince Priebus as chief of staff could herald a conventional tax-cutting, entitlement-program-slashing GOP era.

However, three developments on Sunday suggest that Trump will spice up his conventional awful with his unique brand of horrible. One was the selection of white nationalist demiurge Steve Bannon as chief strategist.

A second is the inadequate response of Team Trump to the rash of hate crimes being perpetrated in their honor. In his 60 Minutes interview, Trump, to his credit, said "stop it" to his followers committing such acts.

But this was diluted considerably by Trumpologist-in-Chief Kellyanne Conway's conclusion that Harry Reid's correct statement that Trump had "emboldened the forces of hate and bigotry in America" warranted not agreement but condemnation of Reid. Worse, Conway darkly suggested that forthright criticism of this sort could lead to "legal" consequences for Reid.

That brings us to the third element of uniquely Trumpian awful that was unleashed on Sunday: the continued indications that Trump will use the tools of law enforcement to target his political enemies.

Even if he ultimately decides not to prosecute Hillary Clinton (assuming President Obama does not issue her a blanket pardon before leaving office) because, as he told Leslie Stahl, the Clintons are "good people," Trump's continued flirtation with the possibility of political prosecutions will have a chilling effect on others.

Faced with so much jaw-dropping stuff in just one day, the national media will tend to pinball to the latest craziness, thus allowing Trump himself to effectively kill a harmful story by replacing it with a new harmful story.

In ordinary times, these harmful stories would have a cumulative impact, but as we saw during the campaign, that's not how it works with Trump. Accordingly, it falls to those of us with particular expertise to dwell on those Trump outrages that would otherwise go unnoticed because they ride in the slipstream of higher-profile outrages.

Let's talk about Trump's 60 Minutes answers about the Supreme Court.

When asked about abortion, Trump said he was pro-life, that he would appoint pro-life justices, rambled off about the Second Amendment and then said that overturning Roe v. Wade would mean that abortion regulation would differ by state, so that women living in states that outlawed abortion could obtain abortions by traveling to states where abortion is legal. Is that right?

Even assuming that any particular woman has the resources to travel for an abortion, only maybe. Overturning Roe on the ground that there is no substantive due process right to abortion would in the first instance send the issue to the states, but one would not expect a truly pro-life president to leave matters there.

A pro-life president would sign legislation from a pro-life Congress banning abortion nationwide. It's possible that at that point one or more justices who had voted to overturn Roe would vote to invalidate the federal law as exceeding Congress's enumerated powers. Justice Thomas is a plausible candidate for such a view.

But it's also possible that the court would sustain the federal law, at least as applied to "abortions using materials that have traveled in interstate commerce." Or perhaps Congress would pass a law forbidding crossing interstate lines for the purpose of having an abortion.

It's possible to imagine a justice who would reject a blanket federal abortion ban as beyond the Commerce power sustaining such a law. So whatever Trump's true views about abortion and the Constitution (if he even has any), appointing pro-life justices would not necessarily result in abortion being legal in some states and illegal in others.

Meanwhile, later in the same interview, Trump was asked about same-sex marriage. Here is the relevant portion of the transcript:

Lesley Stahl: Well, I guess the issue for [LGBTQ groups] is marriage equality. Do you support marriage equality?

Donald Trump: It— it's irrelevant because it was already settled. It's law. It was settled in the Supreme Court. I mean it's done.

Lesley Stahl: So even if you appoint a judge that—

Donald Trump: It's done. It—you have—these cases have gone to the Supreme Court. They've been settled. And, I'm fine with that.

Trump's answer makes no sense. Abortion was "settled in the Supreme Court" 43 years ago. Marriage equality was settled a year and a half ago. Yet Trump thinks (or at least says) that the very recent decision is done, whereas the much older one is ripe for re-examination.

Notice how Stahl attempts to pin Trump down by pointing out that the sorts of justices Trump wants to appoint in order to overturn Roe would also be inclined to overturn Obergefell, but the journalist's imperative to move on to the next question enabled Trump to evade the issue.

Now to be clear, I think it's logically consistent to think that laws banning same-sex marriage are unconstitutional whereas laws banning abortion are valid. And arguably the reliance interests are different. So it's possible that the Trump court would overturn Roe but leave Obergefell in place.

But at the very least there's an issue here. Whether Trump realizes that his approach to judicial nominations puts marriage equality at risk and is being deliberately misleading or simply doesn't understand the stakes is really beside the point.

People who care about marriage equality even if they don't care about abortion rights have good reason to be alarmed by Trump's SCOTUS plans.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org .

Trump's Confused Thinking on Abortion, Marriage Equality | Opinion
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