Two years ago, abortion proved to be the decisive issue in the surprisingly strong Democratic performance in 2022 midterm elections. In the wake of the appalling Dobbs decision eviscerating 50 years of Supreme Court precedent, America’s large and growing pro-choice majority put Republicans on notice that their anti-abortion extremism will come with a steep price. That’s why Donald Trump, the comically self-proclaimed “Father of I.V.F.,” now repeatedly proclaims he opposes a national abortion ban.

But Trump is lying. Regardless of which party controls Congress next year, a newly elected President Trump will almost certainly impose a federal abortion by executive action alone. With two strokes of his Sharpie—both currently unconstitutional—Trump will unilaterally rewrite the 14^th Amendment to extend its protections to fetuses and then impound federal funds for any state that stands in his way.

To be sure, a newly elected and unencumbered Trump can be expected to implement a staggering array of draconian abortion restrictions. Prior to the Dobbs ruling in 2022, Trump voiced his support for a federal abortion ban 50 times. Should the GOP regain control of both houses of Congress, Republicans will doubtless pass a national abortion ban bill, which Trump will just as assuredly sign. (Despite his promises not to do so, House Speaker Mike Johnson “has voted for a national abortion ban and co-sponsored a 20-week abortion ban.” In 2018, President Trump urged Congress to pass a 20-week abortion ban.) Just as important, Project 2025 has provided Trump with a laundry list of new measures to curtail abortion access. These include ending federal support for abortion access for military personnel and in emergency rooms, mandating prosecution of civil suits against those who assist a woman in obtaining an abortion anywhere, using the moribund 1873 Comstock Act to bar sending abortion pills through the mail, and even directing the FDA to reverse its prior approval for mifepristone. Regardless, Donald Trump will not oppose the increasingly harsh state laws that aim to punish Americans seeking abortions even in states where it is currently legal.

But Trump’s first step to imposing a national abortion ban will be to proclaim by fiat that the 14^th Amendment to the Constitution of the United States already does.

The first hint of Trump’s adoption of the “Fetal Fourteenth” became apparent during his complete rewrite of the 2024 Republican Platform in July. Every GOP platform in the 21^st century had explicitly acknowledged that the 14^th Amendment does not support “fetal personhood.” Candidates Bush, McCain, Romney and even Trump ran on anti-abortion planks which called for a new “Human Life Amendment” in order to “to make clear that the Fourteenth Amendment's protections apply to children before birth.” After all, the text of Section 1 of the 14^th Amendment—ratified in 1868 with the express intent of preventing the former Confederate states from denying the civil rights of the newly freed slaves--says nothing of the sort:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis mine.]

Clearly, a fetus is not a citizen of the United States as defined in the first sentence. To be sure, the Supreme Court in the past has ruled that “any person” in the Due Process and Equal Protection clauses is not limited to the American citizens. But given the impossibility of passing their “Human Life Amendment” to deliver the 14^th Amendment’s guarantees to fetuses, some Republican presidential candidates simply declared it so. In 2016, Florida GOP Senator Marco Rubio claimed such a law “already exists” and “is called the Constitution of the United States.” Former Arkansas Governor Mike Huckabee was more explicit:

I think the next president ought to invoke the Fifth, and Fourteenth Amendments to the constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.

Contrary to the fawning coverage of a more “moderate” Trump watering down the 2024 Republican platform, the new GOP abortion plank is intentionally vague:

We proudly stand for families and Life. We believe that the 14th Amendment to the Constitution of the United States guarantees that no person can be denied Life or Liberty without Due Process, and that the States are, therefore, free to pass Laws protecting those Rights. After 51 years, because of us, that power has been given to the States and to a vote of the People.

As the American Prospect warned, “the reference to the 14th Amendment is a clear tell,” adding that “in this context, the reference can only mean that Republicans endorse the perverse ‘fetal personhood’ theory, which holds that those protections also apply to fetuses and embryos, or ‘unborn’ persons.

Donald Trump’s most ardent supporters from the religious right certainly think so. As Ralph Reed of the Faith and Freedom Coalition put it, “The Republican Party platform makes clear the unborn child has a right to life that is protected by the Constitution under the Due Process Clause of the 14th Amendment.” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, celebrated as well, declaring “it is important that the GOP reaffirmed its commitment to protect unborn life today through the 14th Amendment.” “Perverting the 14^th Amendment,” as Jamelle Bouie rightly described it, is precisely the point. The objective, as Kristan Hawkins, the president of Students for Life explained, is to “stop a weaponized federal government from pushing abortion wherever it can.”

In 2021, Americans United For Life published what it called the Lincoln Project, which called on Mr. Trump to issue an executive order codifying the Fetal Fourteenth by “recognizing preborn persons as constitutional ‘persons’ entitled to the fundamental human rights of due process and equal protection of the laws.” In the case of second of second Trump, past performance is a guarantee of future results. In 2019, Trump’s Department of Health and Human Services forced Planned Parenthood out of the Title X program, cutting off $286 million in funding because the new HHS rules prohibited “Title X grantees from providing or referring patients for abortion, except in cases of rape, incest or medical emergency.” (The Biden administration subsequently reversed this rule.)

But President Trump didn’t end there. In 2017, Trump first made “fetal personhood” federal policy when he revised the mission of HHS. Redefining life as “beginning at conception,” the HHS mission statement read this way until the inauguration of Joe Biden on January 20, 2021:

HHS is the U.S. Government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves. HHS accomplishes its mission through programs and initiatives that cover a wide spectrum of activities, serving and protecting Americans at every stage of life, from conception. HHS is responsible for almost a quarter of all Federal outlays and administers more grant dollars than all other Federal agencies combined. [Emphasis mine.]

And in his second term, a President Trump wouldn’t merely unleash the Justice Department to prosecute any state that tries to protect women’s reproductive rights. Donald Trump has already claimed the executive power to cut off their federal funding.

That executive power is called “impoundment.” And in a video presentation on June 20, 2023, Donald Trump proclaimed his intention to use it to “restore executive branch impoundment authority  to cut waste, stop inflation, and crush the Deep State.”

For 200 years under our system of government, it was undisputed that the President had the Constitutional power to stop unnecessary spending through what is known as Impoundment.

Very simply, this meant that if Congress provided more funding than was needed to run the government, the President could refuse to waste the extra funds, and instead return the money to the general treasury and maybe even lower your taxes […] bringing back Impoundment will give us a crucial tool with which to obliterate the Deep State, Drain the Swamp, and starve the Warmongers –-- these people that want wars all over the place; killing, killing, killing, they love killing --- and the Globalists out of government.

We are going to get the Warmongers and the Globalists out of our government.

With Impoundment, we can simply choke off the money.

And when Trump says, “choke of the money,” that also means any money headed to the states that he doesn’t want to spend for any reason. That could include, say, federal funds for disaster relief in California, Title X dollars to pro-choice states, or just about anything else.

Importantly, Trump’s message acknowledges he would need to “restore executive branch impoundment authority” and “bring it back.” That’s because the past practice of not spending all of the money Congress appropriated for a specific program, a tactic occasionally used by Presidents from Jefferson and Grant to Teddy Roosevelt and FDR, has been strictly governed by Congress since 1974. The impetus was the abuses of Richard Nixon, who increasingly resorted to impoundment  withhold funds for almost any reason, including political vendettas. As the Democratic Study Group said in 1973 of the tens of billions of dollars President Nixon withheld:

“Following the 1972 election the use of impoundment reached crisis level. The President decimated programs for housing, agriculture and water pollution control by refusing to spend funds provided by Congress.”

The need to defend the Constitution’s twin requirements that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” and the President “take Care that the laws be faithfully executed” led to the Congressional Budget and Impoundment Control Act (ICA or CBA) of 1974. As the Committee for a Responsible Federal Budget explained, for any spending “rescissions, the ICA provides a different fast-track mechanism for Congress to approve the proposed rescission within 45 session days, or else the President must release the funds.”

Now, Donald Trump knows this. After all, in January 2020 the Government Accountability Office (GAO) ruled that President Trump’s effort to block the release of $250 million in Congressionally-mandated aid to Ukraine ran afoul of the Impoundment Control Act. (Yes, that’s the same $250 million over which Trump was impeached.) His June 2023 statement didn’t merely state that as President, Trump will “work with Congress to overturn the limits of the CBA.” Trump intends to dare the Supreme Court to stop him:

President Trump will take action to challenge the constitutionality of limits placed on the Impoundment Power by the Congressional Budget and Impoundment Control Act of 1974 (CBA), the source of Congress’s usurpation of Executive Branch powers. [Emphasis mine.]

In other words, as the 47^th President of the United States, Donald Trump plans to take an axe to any federal spending he deems excessive, unwise, or undesirable. That could certainly include dollars for health care, roads, schools, disaster relief or pretty much anything else designated by Congress for states where abortion is legal. And while the Supreme Court in 1996 ruled that the line-item veto given to the President ran afoul of the Constitution’s presentment clause, it’s not a stretch to imagine that for its usual partisan reasons the Roberts Court would strike down the Impoundment Control Act altogether.

All of which means that abortion rights in the United States could become a thing of the past during a second Trump presidency. Donald Trump will simply grab his Sharpie and declare fetal personhood the law of the land and cut off money to any state that dares to defy him. And to do it, he won’t need legislation from Congress, but only a blessing from his Supreme Court.