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Trump’s False Claim About Roe

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In a video statement outlining his position on abortion, former President Donald Trump falsely claimed that “all legal scholars, both sides, wanted and in fact demanded” that Roe v. Wade “be ended.” Legal scholars told us that was “utter nonsense” and “patently absurd.”

Roe, the 1973 Supreme Court ruling that established a constitutional right to abortion, was overturned by the Supreme Court on June 24, 2022, by a 5-4 ruling in the case Dobbs v. Jackson Women’s Health Organization, which concerned a Mississippi law. Legal scholars wrote many amicus briefs in that case supporting Roe and opposing the state law.

For instance, 12 scholars in reproductive rights wrote: “Overturning decades of precedent—precedent on which women have relied and around which women have planned their lives—would have catastrophic effects on all women, but most acutely on women of color.” The American Bar Association, whose members include lawyers and law professors, wrote in its brief that “the ABA has consistently opposed overturning Roe v. Wade,” as well as a subsequent Supreme Court ruling that reaffirmed Roe and “laws that seek to bar abortion before viability.”

Trump appointed three of the nine justices on the Supreme Court, giving the court the conservative majority it needed to overturn Roe. “I was proudly the person responsible for the ending of something that all legal scholars, both sides, wanted and in fact demanded be ended. Roe v. Wade, they wanted it ended,” Trump said in a video posted on Truth Social on April 8.

“This one is clearly false. Most legal scholars, like most Americans, didn’t want Roe overturned,” Mary Ziegler, a professor of law at the University of California, Davis, told us in an email. Ziegler, the author of six books on the abortion debate and the law, said that “we can name any number of professors who submitted briefs to SCOTUS asking Roe not to be overturned.”

David S. Cohen, a professor of law at Drexel University and an expert in legal issues concerning abortion, told us Trump’s claim was “utter nonsense.”

Marie Griffith, a professor at Washington University in St. Louis and the director of the John C. Danforth Center on Religion and Politics, said in an email: “As you have doubtless guessed, it is patently absurd to claim that all legal scholars ‘wanted and in fact demanded’ that Roe v Wade be ended. Definitely false.”

These experts said some scholars have had criticisms of the legal reasoning in Roe, but that doesn’t mean they wanted the ruling overturned. The late Justice Ruth Bader Ginsburg said it would have been better to base the abortion rights ruling on the equal protection clause of the Constitution, or gender equality, as opposed to a right to privacy under the due process clause, which is how the opinion was written.

Signs left by abortion-rights supporters line the security fence surrounding the Supreme Court on June 28, 2022, a few days after the court overturned Roe v. Wade and ended a federal right to an abortion. Photo by Nathan Howard/Getty Images.

“Some legal scholars on the left wanted abortion rights to be grounded in a different constitutional home—i.e., equal protection rather than due process,” Greer Donley, an associate professor at the University of Pittsburgh Law School and an expert on abortion and the law, told us. “This view was a disagreement on reasoning in Roe, but not on the outcome. Progressive legal scholars were fairly unified in their view that a national constitutional right to abortion was critical, and that overturning Roe would be problematic, if not catastrophic. So it is blatantly incorrect to argue that all legal scholars wanted Roe to be overturned.”

In his video, Trump reiterated the false idea that abortion is now “where everybody wanted it from a legal standpoint.” Public opinion polls have shown a majority of Americans opposed overturning Roe.

In a 2019 survey conducted by the Pew Research Center, 70% said they didn’t want the Supreme Court to completely overturn Roe, and earlier surveys by the center also found a majority against abolishing Roe.

Since the Dobbs case, several polls have found a majority of Americans oppose the Supreme Court’s ruling overturning Roe. A February Marquette Law School poll and a July 2023 CNN poll found that 67% and 64%, respectively, disapproved of the Dobbs decision. In a May 2023 poll by Gallup, 61% said overturning Roe was a “bad thing.”

Trump’s Position

Trump’s video said his position on abortion is that states should make their own decisions. “The states will determine by vote or legislation or perhaps both. And whatever they decide must be the law of the land. In this case, the law of the state,” he said. “Many will have a different number of weeks or some will have more conservative than others and that’s what they will be.”

He said he was “strongly in favor of exceptions for rape, incest and the life of the mother.”

His April 8 statement comes a week after the Florida Supreme Court allowed a six-week abortion ban, with exceptions for rape, incest and the life of the mother, to stand. It will take effect on May 1. The court also permitted a measure to appear on ballots this November asking voters whether they support an amendment to the state constitution to prohibit restrictions on abortion before a fetus is viable outside the womb.

President Joe Biden’s reelection campaign has been running TV ads that claim Trump supports a “national ban” on abortion. In February, the New York Times reported, based on anonymous sources, that Trump had privately said he was in favor of a nationwide ban after 16 weeks, with exceptions for rape, incest and the life of the mother. But until his recent statement, Trump had avoided making his position clear publicly. He didn’t refer to calls for a national ban in the video.

In a statement, Biden said, “If Donald Trump is elected and the MAGA Republicans in Congress put a national abortion ban on the Resolute Desk, Trump will sign it into law.”

Repeated Falsehood on Abortion ‘After Birth’

Trump also repeated a false claim he has frequently made, saying Democrats “support abortion up to and even beyond the ninth month.” He claimed, “The baby is born, the baby is executed after birth.” That would be homicide, and it’s illegal.

As we’ve written, many Democrats support the Roe ruling, which said states could outlaw abortion after fetal viability, but with exceptions for risks to the life or health of the mother. Many Republicans have objected to the health exception, saying it would allow abortion for any reason.

Back in 2019, Trump made similar claims in reference to a GOP bill calling for jail time for health care practitioners who don’t provide certain medical care “[i]n the case of an abortion or attempted abortion that results in a child born alive.” Specifically, the bill would have required health providers “to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.” As we wrote then, Democrats said the legislation was unnecessary and aimed at restricting access to legal abortion, while Republicans said it was about protecting babies.

A federal law isn’t necessary to prosecute the intentional killing of a baby as a homicide. “States can and do punish people for killing children who are born alive,” Ziegler told us at the time. “Most criminal laws are at the state level not the federal level.”

The vast majority of abortions in the U.S. occur early in pregnancy. According to data from the Centers for Disease Control and Prevention, 93.5% of abortions in 2021 were performed at or before 13 weeks of gestation, and less than 1% were performed at or after 21 weeks.

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