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Fact check: Trump makes wildly inaccurate claim that ‘all legal scholars’ on ‘both sides’ wanted Roe overturned

By Daniel Dale, CNN

Washington (CNN) — Former President Donald Trump has accurately boasted that he played a central role in getting the Supreme Court to overturn the 1973 Roe v. Wade decision that guaranteed abortion rights across the country. But he keeps making wildly inaccurate claims that the court’s 2022 decision to rescind Roe had universal support.

In a video statement on abortion policy he posted on social media Monday, Trump said: “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.” Later in his statement, Trump said that since “we have abortion where everybody wanted it from a legal standpoint,” states are free to determine their own abortion laws.

It wasn’t clear there whether Trump was using “everybody” to refer to legal scholars in particular or the American public. But in previous statements this year, he has broadly claimed that “everybody,” period, agreed the power to determine abortion law should be returned to individual states.

Facts First: Trump’s claim that “all legal scholars” wanted Roe overturned is not even close to true; many wanted Roe preserved, as several legal scholars reiterated in Monday comments to CNN. And Trump’s broader claims that “everybody” wanted states to be granted the power to determine abortion law are also false; opinion polls have consistently showed a large majority of Americans did not want Roe terminated.

Many legal scholars wanted Roe preserved

It’s not clear what percentage of “legal scholars” wanted Roe v. Wade overturned. Some of them certainly did.

But Trump, the presumptive Republican presidential nominee, claimed that “all” of them wanted Roe gone. A simple Google search shows that is untrue.

“Any claim that all legal scholars wanted Roe overturned is mind-numbingly false,” Rutgers Law School professor Kimberly Mutcherson, a legal scholar who supported the preservation of Roe, said Monday.

“Donald Trump’s claim is flatly incorrect,” said another legal scholar who did not want Roe overturned, Maya Manian, an American University law professor and faculty director of the university’s Health Law and Policy Program.

“Please make clear that the facts are the opposite of Trump’s claims,” said Yale Law School professor Reva Siegel, yet another legal scholar who wanted Roe preserved.

Trump’s claim is “obviously not” true, said Mary Ziegler, a law professor at the University of California, Davis who is an expert on the history of the US abortion debate. Ziegler, who also did not want Roe overturned, said in a Monday interview: “Most legal scholars probably track most Americans who didn’t want to overturn Roe. … It wasn’t as if legal scholars were somehow outliers.”

It is true that some legal scholars who support abortion rights wished that Roe had been written differently; the late liberal Supreme Court Justice Ruth Bader Ginsburg was one of them. But Ziegler noted that although “there was a cottage industry of legal scholars kind of rewriting Roe – ‘what Roe should’ve said’ – that isn’t saying Roe should’ve been overturned. Those are very different things.”

Mutcherson said in an email: “Many of us have argued for decades that Roe was too narrow, and became even more so after Casey,” a 1992 Supreme Court decision on abortion rights, “so the call was to strengthen Roe, certainly not to overturn it and give states the power to deprive women of such a basic right of control over their bodies and futures.”

Manian said in an email: “Criticism of Roe from legal scholars supporting reproductive justice focused on expanding Roe’s protections, not overturning Roe. Reproductive justice scholars called for overturning the case upholding the Hyde Amendment (Harris v. McRae), which was an extremely narrow reading of Roe and narrow approach to constitutional protection for access to abortion. In other words, critics of Roe from the progressive side argued for expanding abortion rights beyond the floor set by the decision, not for overturning and eviscerating Roe.

Most Americans wanted Roe preserved

Trump has gone well beyond claims about “legal scholars” supposedly being united in support for the decision to overturn Roe. He has repeatedly claimed that “everybody” agreed the matter of abortion law should be left up to each state, suggesting he was referring to the views of the American public.

In fact, poll after poll has shown that most Americans – two-thirds or nearly two-thirds of respondents in multiple polls – wish Roe would have been preserved.

For example, a CNN poll conducted by SSRS in July 2023 found 64% of adults opposed the Supreme Court’s decision to overturn Roe; that result was nearly identical to the result of a CNN poll conducted by SSRS in July 2022, the month after the decision. Similarly, a Marquette Law School poll in February 2024 found 67% of adults opposed the decision that overturned Roe.

A NBC News poll in June 2023 found 61% opposition among registered voters to the decision that overturned Roe. A Gallup poll in May 2023 found 61% of adults called the decision a bad thing.

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