The Democratic Party won’t be the only one on the ballot this November with a self-described pro-choice nominee on its presidential ticket. Libertarians chose former New Mexico Republican Gov. Gary Johnson, a self-identified pro-choice candidate, as the party’s nominee for the 2016 race during their convention on May 29.
Though Johnson’s chances of becoming president are low, the Libertarian Party will likely be the only third-party option on the ballot in all 50 states. According to statistical analysis site FiveThirtyEight, several recent national polls have the Libertarian nominee taking 10 percent of the vote. Those numbers are nothing, the site noted, to shrug at: “Gary Johnson is neither Donald Trump nor Hillary Clinton. He might not win a state, but he could make some noise.”
In an election year when many voters are increasingly frustrated with their options, both Johnson’s presence in the race and his policy positions are notable. Candidates need only reach 15 percent in selected public opinion polls to make it to the national debate stage, meaning Johnson may have a shot at bringing his opinions to the masses.
When it comes to reproductive rights in particular, Johnson appears to have spent years walking a fine line, frequently presenting himself as “pro-choice” while simultaneously opposing abortion on a personal level and supporting some restrictions on the procedure. “[Abortion] should be left up to the woman,” said Johnson during a 2001 interview with Playboy, adding that if his “daughter were pregnant and she came to me and asked me what she ought to do, I would advise her to have the child. But I would not for a minute pretend that I should make that decision for her or any other woman.”
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Johnson’s current campaign website continues this trend, seemingly attempting to have it both ways on abortion. It borrows aspects from both anti-choice and pro-choice advocates and pushes the line that the candidate “has the utmost respect for the deeply-held convictions of those on both sides of the abortion issue.”
“It is an intensely personal question, and one that government is ill-equipped to answer,” reads Johnson’s campaign site. Though the site notes that the candidate has “never advocated [for]abortion or taxpayer funding of it,” it goes on to explain that Johnson supports the “right to choose.”
“Further, Gov. Johnson feels strongly that women seeking to exercise their legal right must not be subjected to persecution or denied access to health services by politicians in Washington or elsewhere who are insistent on politicizing such an intensely personal and serious issue,” concludes his abortion platform before adding an aside that he supported bans on “late term abortions” during his time as governor. The page does not define what “late term abortion” means in this context, nor does it go into more detail about what specific bans Johnson backed.
Johnson’s attempts to craft his own middle ground in the abortion debate during the 2016 elections are holdovers from his past run for the White House during the 2012 election, when he ran as a Republican before switching over to the Libertarian Party. During a June 2011 interview with Rolling Stone, Johnson plainly stated his position on abortion, as well as several anti-choice measures he has supported in the past:
I support women’s rights to choose up until viability of the fetus. I’ve supported the notion of parental notification. I’ve supported counseling and I’ve supported the notion that public funds not be used for abortions. But I don’t want for a second to pretend that I have a better idea of how a woman should choose when it comes to this situation. Fundamentally this is a choice that a woman should have.
Johnson consistently says he is pro-choice up until the point of viability, something already enshrined into law in Roe v. Wade. As Rewire has previously reported, “Even though the Court in Roe decided that fetal viability would be the benchmark for the balance between a person’s right to choose and the state’s interest in “potential life,” the Court was silent on when fetal viability occurs. It left that decision up to doctors.”
In August 2011, during an argument with the editor in chief of the conservative CNS News, Terry Jeffrey, Johnson fired back at the host for pushing him to concede that a fetus should have the same “right to life” as born individuals. This argument is often used by conservatives to support so-called personhood legislation, which would grant constitutional rights to a fetus as early as conception, and could outlaw abortion as well as many forms of contraception.
“What you’re saying is that you would take this away from a woman, you would criminalize a woman who is making a choice that I believe only a woman should make,” said Johnson, who flatly asserted that women should have the right to opt for abortion up until the point of viability. “And you may in fact be criminalizing the activities of doctors who are involved also,” he noted.
Johnson’s critique of Jeffrey’s question and his clear opposition to criminalizing those who have or provide abortions stands in contrast to presumptive Republican nominee Donald Trump, who said in March that those who have abortions should face “some form of punishment” if it was illegal, only to later claim that doctors—not women—should be punished.
Even so, Johnson again touted his support for a number of restrictions on abortion access, presumably to shore up support among Republican voters. “I signed a law banning late-term abortion, believing there is a point of viability,” said Johnson on the show, “and I also as governor of New Mexico supported parental notification. I have also always supported counseling.”
State-mandated counseling for abortion-which is what Johnson seems to be pitching-often requires “information that is irrelevant and misleading,” according to a March 2016 report from the Guttmacher Institute. The waiting periods that frequently accompany such laws, for that matter, often create hardship for women by adding additional expenses or logistical hurdles for those seeking abortion care. Guttmacher also found in a 2009 report that the most direct impact of common parental consent laws “is an increase in the number of minors traveling outside their home states to obtain abortion services in states that do not mandate parental involvement or that have less restrictive laws.”
Johnson’s claim about banning later abortions during his tenure as governor of New Mexico, meanwhile, presumably refers to a so-called partial-birth abortion ban outlawing certain kinds of later abortions-though, like the claim on his 2016 website, the specifics are not clear Johnson signed the ban into law in 2000, making it the first restriction on abortion put in place in the state in more than 25 years.
In truth, “partial-birth abortion” is an inflammatory non-medical term, coined by the anti-choice National Right to Life Committee in 1995 in an effort to make passing abortion restrictions easier. It is often used to describe the dilation and extraction abortion procedure (D and X), typically performed between 20 and 24 weeks of pregnancy. New Mexico’s law made it a fourth-degree felony for a doctor perform the procedure on “an independently viable fetus.” As NPR has reported, most D and X abortions actually do not take place after viability:
And contrary to the claims of some abortion opponents, most such abortions do not take place in the third trimester of pregnancy, or after fetal “viability.” Indeed, when some members of Congress tried to amend the bill to ban only those procedures that take place after viability, abortion opponents complained that would leave most of the procedures legal.
According to the Albuquerque Journal, “abortion opponents say the  law had little impact because it pertained only to cases in which a fetus had attained viability, which is defined as being able to live outside the womb.”
Johnson also asserted during a 2011 Republican debate hosted by Fox News that he would have signed a ban on later abortion, had one reached his desk. However, he again did not elaborate on what point in pregnancy such a ban would apply or whether it would have exceptions.
Johnson’s 501(c)(4) organization, Our America, has gone as far as to call for Roe v. Wade to be completely overturned. When Johnson was running for president in 2012, the group’s site discussed the candidate’s position on abortion before calling for the Supreme Court to overturn the case:
Judges should be appointed who will interpret the Constitution according to its original meaning. Any court decision that does not follow this original meaning of the Constitution should be revisited. That is particularly true of decisions such as Roe vs. Wade, which have expanded the reach of the Federal government into areas of society never envisioned in the Constitution. With the overturning of Roe vs Wade, laws regarding abortion would be decided by the individual states.
Any mention of the topic seems to have been scrubbed from the current version of the organization’s website, but Johnson’s pitch for a potential replacement for Justice Antonin Scalia on the Supreme Court speaks for itself. Shortly after the justice’s death in February, Johnson shared a picture of himself on Facebook with Fox News’ senior judicial analyst, Andrew Napolitano, calling the conservative media figure a “great candidate” for the vacant seat.
Napolitano is stringently anti-choice: During a January 2016 segment for Fox News, Napolitano blasted the Court’s decision in Roe, claiming that it allows the “murder of babies in the womb,” advocating for Congress to pass an extreme “personhood” amendment in order to end legal abortion. He also compared Roe v. Wade to the Supreme Court’s decision in Dred Scott v. Sanford, which denied personhood to Black Americans, essentially upholding slavery.
Napolitano also took issue with exceptions to abortion bans in cases of rape in a 2012 opinion piece for FoxNews.com after former Missouri Republican Rep. Todd Akin notoriously claimed that in cases of “legitimate rape, the female body has ways to try to shut the whole thing down.”
“Rape is among the more horrific violations of human dignity imaginable,” wrote Napolitano. “But it is a crime committed by the male, not the female—and certainly not by the child it might produce. When rape results in pregnancy, the baby has the same right to life as any child born by mutually loving parents. Only the Nazis would execute a child for the crimes of his or her father.”
This rhetoric echoed Napolitano’s recent comparison of the legalization of abortion care to “the philosophical argument underlying the Holocaust.”
Johnson’s willingness to consider Napolitano to fill a Supreme Court vacancy make one thing clear: Even if Johnson claims to be pro-choice, should he win the White House, access to abortion may still be in jeopardy. The Libertarian nominee’s support of a number of abortion restrictions and apparent willingness to nominate anti-choice justices to the Court call into question whether the “right to choose” Johnson claims he supports would truly remain—an alarming prospect given the increased attention the candidate is receiving in the 2016 election.