Trump Pulls New 16-Week Abortion Standard Out of Thin Air

The once and perhaps future star of the anti-abortion movement. Photo: Mark Wilson/Getty Images

There is a wide range of positions on the legality of abortion that are based on some belief or assertion related to biology, ethics, or metaphysics. Some people (particularly religious conservatives) famously claim that “life begins at the moment of conception,” and that banning any interference with the development of that life represents homicide. That is the foundation for the extremist “fetal personhood” position that would use force of law to compel women to carry every pregnancy to term. Some abortion opponents won’t go quite that far, but they argue that it’s morally essential to ban abortions from the point a fetal heartbeat can allegedly be discerned. That is the basis for the six-week “heartbeat laws” in place in many states after the U.S. Supreme Court reversed Roe v. Wade. Other abortion opponents claim (on dubious medical grounds) that a fetus can feel pain at 15 weeks of pregnancy (or at either 20 weeks or 22 weeks of pregnancy) and promote abortion bans at that point.

Conversely, of course, there are many people who believe fetal viability is the crucial point at which a new life becomes distinct from its mother, making some restrictions on abortion appropriate at that point (roughly at 24 weeks of pregnancy). Viability, accordingly, was the standard for a constitutional right to choose abortion during the era of Roe v. Wade and Planned Parenthood v. Casey. Many pro-choice Americans are working very hard to restore the viability standard via state constitutional measures or statutes. But others believe that as a matter of bodily autonomy, any fetus at any state of development is part of its mother, and thus argue that the right to abortion should become unconditional.

I’ve gone through this exercise to establish that however shaky the rationale might be for this or that legal scheme governing abortion, there almost invariably is one. That’s not true of the 16-week standard that Donald Trump is reportedly planning to promote later this year or perhaps only if and when he takes office, according to the New York Times:

Former President Donald J. Trump has told advisers and allies that he likes the idea of a 16-week national abortion ban with three exceptions, in cases of rape or incest, or to save the life of the mother, according to two people with direct knowledge of Mr. Trump’s deliberations. …

One thing Mr. Trump likes about a 16-week federal ban on abortions is that it’s a round number. “Know what I like about 16?” Mr. Trump told one of these people, who was given anonymity to describe a private conversation. “It’s even. It’s four months.”

The Times characterizes the former president’s approach to this issue with what might be the understatement of the year: “Mr. Trump has approached abortion transactionally since becoming a candidate in 2015, and his current private discussions reflect that same approach.”

His allies in the anti-abortion movement certainly understand that, which is why they mostly pulled their punches when he began publicly blaming them for poor Republican performance in the 2022 midterms and then refused to sign onto the national 15-week abortion ban being proposed as a litmus test. Part of this extraordinary forbearance from people not known for flexibility undoubtedly represents gratitude for Trump’s huge role in reshaping the U.S. Supreme Court into one that would reverse Roe. But it is very likely that they also figure Trump’s public position on their favorite topic doesn’t necessarily reflect anything deeper than whatever ephemeral tactic he is pursuing at any given moment.

The proposed 16-week standard would, however, give anti-abortion activists something they want very badly: a presidential candidate committed to a national abortion ban. If it works like other national bans that have been proposed, it would create a floor on abortion restrictions rather than a ceiling: Abortions after 16 weeks would be banned in blue states, while red states would be free to ban abortion altogether.

What Trump’s “solution” would not do, however, is what he says it would do in his past comments on the subject. Per the Times:

[H]e talks about abortion as if it’s a real-estate transaction. He has taken credit for giving “great negotiating power” to anti-abortion activists.

“What’s going to happen is you’re going to come up with a number of weeks or months,” Mr. Trump said in an interview on NBC’s “Meet the Press” in September. “You’re going to come up with a number that’s going to make people happy.”

His “number” isn’t going to make women whose rights are arbitrarily cut off at 16 weeks of pregnancy “happy,” and it won’t make the pro-choice majority of Americans happy, either. For that matter, anti-abortion activists won’t be “happy” with a 16-week national ban other than as a way station to the total prohibition that they want. The only happy party will be Trump, and only if it helps him get back to the White House.