During the first Republican debate on Wednesday night, former South Carolina Gov. Nikki Haley and former Vice President Mike Pence dueled over the prospect of a national abortion ban. Haley chided Pence for being dishonest about abortion and then proceeded to lie about it herself.
Haley claimed that a national abortion ban can’t pass because there aren’t 60 Senators who would vote for it; she said the country needs to come to a consensus before Congress could ever pass a national ban. (That’s a lie, more below.)
Pence gathered some courage to needle her and said, “To be honest with you Nikki, you’re my friend, but a consensus is the opposite of leadership.” He proceeded to argue that abortion isn’t a state issue, it’s a moral issue, and he supports a federal ban. (Anti-abortion groups have made supporting a national ban a litmus test.) “A 15-week ban is an idea whose time has come, it’s supported by 70% of the American people, but it’s gonna take unapologetic leadership, leadership that stands on principle and expresses compassion for women in crisis pregnancies,” he said.
Haley shot back: “When you’re talking about a federal ban, be honest with the American people. We haven’t had 45 ‘pro-life’ Senators in over 100 years. So no Republican president can ban abortions any more than a Democrat president could ban all those state laws. Don’t make women feel like they have to decide on this issue when you know we don’t have 60 Senate votes.”
Here’s a clip:
But the problem with Haley’s position is that it ignores the brute power a Republican president could wield in order to enact such a deeply unpopular policy. A Republican president could achieve a federal abortion ban by nuking the Senate filibuster or simply invoking the Comstock Act. The Senate requires 60 votes to pass legislation right now, but a future Majority Leader could move to change that rule and allow legislation to pass with just 50 votes. Plus, there’s an active effort to get federal courts to recognize the Comstock Act of 1873, which bans the mailing of items used for abortion. Comstock is an issue in the current abortion pill lawsuit, but it could actually be used to ban instruments and other supplies shipped to clinics for abortion procedures, too—meaning, it could end all abortions. Finally, one national group is pushing for a presidential executive order to grant personhood to fetuses under the 14th Amendment, which would (again) ban all abortions.
It’s unsurprising that Fox News didn’t ask Haley about ending the filibuster or the Comstock Act—they’re happy to let Republicans evade these issues. Law professor Mary Ziegler predicted as much:
Haley’s been spouting this “a ban can’t pass” nonsense for months. During an April event at the headquarters of Susan B. Anthony List, she said, “We have to face this reality. The pro-life laws that have passed in strongly Republican states will not be approved at the federal level. That’s just a fact.” And that’s just not the whole truth.