In my estimation, there are few moments that better encapsulate Donald Trump’s 2016 bid for the Republican presidential nomination than when he was asked during a town-hall event in April of that year whether he thought that women who sought illegal abortions should face criminal punishment.
“The answer is,” Trump said, pausing to think about it — “that there has to be some form of punishment.” When he said “has,” he did his characteristic karate-chop gesture of finality. The official position of the man poised to be the Republican candidate for president is that abortion should be illegal — and that women who had illegal abortions should be punished by law.
This was not the position of the antiabortion movement, at least publicly. The campaign scrambled to modify Trump’s affirmation, insisting that, should abortion be banned, “the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.” After all, they didn’t want to alienate women who would be voting in November.
But with a revocation of the Roe v. Wade ruling potentially imminent, it’s worth nothing that Trump’s off-the-cuff position is one held by many members of his party.
In 2019, the Kaiser Family Foundation conducted a national poll asking Americans what repercussions should exist for performing or having an abortion in violation of law. Most Americans thought that neither doctors nor those receiving the abortion should face criminal penalties, including either fines or prison time. Among Republicans, though, most said that doctors should face criminal punishment and about half said that women who get abortions should.
Pew Research Center asked a more nuanced question in March. If a doctor performed or a woman received an abortion in violation of the law, what punishment should they face? Again, most Americans didn’t say a woman should face a penalty and less than half said doctors should face jail time or a fine. Among Republicans, more than half said doctors should face jail time or a fine and three-quarters said either that criminal punishment was warranted or were open to that being the case. Sixty-three percent of Republicans said either that the woman should face criminal punishment or that they were not sure.
Of course, many of those being polled possibly hadn’t spent much time considering the question either and, like Trump, might have simply seized on the idea in the moment. But it suggests there may be openness to laws that not only ban abortion but also institute punishments as a result.
In some states, that’s already the case. More than a dozen states have “trigger laws” that would go into effect on the repeal of Roe. In many cases, those laws would institute criminal punishments for performing an abortion. On Sunday, for example, Oklahoma Gov. Kevin Stitt was interviewed on Fox News, where he stood by his state’s law imposing criminal penalties on doctors.
In that state, women are explicitly excepted from criminal punishment. That’s the case in a number of states with similar laws; women are carved out of the criminal punishments indicated in the legislation. In Louisiana, lawmakers considered going further, expanding their law to implement criminal penalties for woman having an abortion performed. That bill was later withdrawn. As The Washington Post’s Aaron Blake pointed out last week, South Carolina still has legislation on the books imposing misdemeanor criminal punishment for women.
Trump’s 2016 response assumed a key hypothetical: if abortion were illegal. The repeal of Roe would mean this possibility would become a reality in a number of states. It means that legislation aimed at preventing abortion might, in fact, expand to include potential punishments for those who choose to have them. It means that many Republicans might step up to support such legislation.
It means that, should Trump run again in 2024, he might want to have an answer to questions about such a proposal ready to go.