Donald Trump should be wary of ‘let them take the boat’ approach to abortion

Marie Antoinette's alleged "let them eat cake" remark had a quality of truthfulness, even if she never in fact said it. We can be more confident – this time anyway – that when Donald Trump replied in a similar vein to a question about what would happen to women in states that abolished abortion rights, he did actually answer: "They'll perhaps have to go to another state . . ."

Easy. They can do the equivalent of what Irish women have done for generations: take the boat to England. In the US case, they can cross a state line or, as one critic put it with a reference to the history of slavery, “travel a new underground railroad from red to blue”.

Woe betide any Irish politician who publicly dismissed concerns about the effect of a ban with the suggestion “let them take the boat”. And there will be more than one of Trump’s evangelical and anti-choice supporters who will wince – after all, if abortion is wrong, is actually killing, then advising the boat option is surely a hypocrisy worthy of Charles Haughey’s “Irish solution to an Irish problem”?

But Trump’s cynical approach is illuminating. It’s another area where he seems to be backing off from some of the more absolutist positions adopted during the campaign, although even then it was difficult to pin him down. Sensitive to criticism that he was alienating women with his opposition to abortion and calls for punishment of abortion providers, Trump also announced at one point that he is “pro-choice” and simply opposed to late-term abortions.

But the main election message remained anti-abortion and his intention to roll back the clock by nominating conservative judges to the Supreme Court to reverse the landmark Roe v Wade decision. One new judge would probably do the trick, and there is a vacancy on the divided nine-member court that Republicans have refused to let President Barack Obama fill. They might prefer two appointments for safety, and Trump has already published a list of “safe” conservatives from whom he will pick.

Since the election, however, the president-elect has been careful not to talk of a complete ban on abortion; instead, he speaks of returning the issue to each state’s jurisdiction.

“It would go back to the states,” he has said, turning abortion from a moral cause to a states’ rights issue.

That is a longstanding and popular slogan among conservatives, but it will be problematic legally. Does the devolution of decisions such as abortion to the states mean granting them the right to discriminate, specifically by denying women access to services and rights that are legally available in other states? This is a question that the European courts have addressed in relation to Ireland’s abortion regime.

According to the Guttmacher Institute, 19 states have laws on the books that, if the Roe v Wade decision was overturned, would automatically ban or severely restrict abortion. Many of them are contiguous, such as the long stripe between Missouri and Louisiana, as well as both North and South Dakota.

Linda Greenhouse of the New York Times points to the challenge Trump faces, however, in the reasoning of a 1930s case about a black student from Missouri denied the right to attend the state university: State of Missouri ex rel Gaines v Canada (Canada being the name of an official at the university).

Lloyd Gaines wanted to become a lawyer and applied to the University of Missouri's law school, for which his academic record qualified him but his race did not. At a time when "separate but equal" was the discriminatory principle underpinning the law of the land, a local statute provided that university officials "shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri and to pay the reasonable tuition fees for such attendance".

Gaines declined the offer, insisting on his right to attend the Univeristy of Missouri.

The chief justice, in ruling, argued that states may not pass responsibility for their citizens to another state and the case has been cited in a recent Mississippi abortion case to the effect that “Gaines simply and plainly holds that a state cannot lean on its sovereign neighbours to provide protection of its citizens’ federal constitutional rights”.

To allow individual states to determine whether or not to permit abortion services, it appears, may require the US Supreme Court to find a far more radical proposition: that abortion violates the US constitution. That may be a step too far even for a court loaded with Trump-acceptable judges.