The summary
- After an election in which abortion rights were a major issue, attention is now turning to the policy changes that Donald Trump could make as president.
- Trump has said he would not sign a federal abortion ban and that states should set their own policies.
- But experts pointed to ways a new Trump administration could restrict abortion nationwide without explicitly banning it.
The victory of newly elected President Donald Trump in an election in which The right to abortion was in the spotlight raises big questions about what the next step could be for abortion access in the US
During the final stages of his campaign, Trump said he believed states should set their own abortion policies. But his Views on this issue varied widely – in an interview in March, he indicated support for a nationwide ban on abortions after fifteen weeks of pregnancy, and as president he supported this proposal a House bill that would have banned abortion nationwide after twenty weeks. During his 2016 campaign, Trump promised to appoint Supreme Court justices who could help overturn Roe v. Wade. As president he achieved that goal and has sometimes boasted about this.
Meanwhile, newly elected Vice President J.D. Vance has suggested he would support a national law restricting abortion. More recently, he adopted Trump’s position of letting states decide.
The Trump campaign did not respond to a request for comment.
Because of these inconsistencies, policy experts say, there is no clear roadmap for the future of abortion second Trump administration – although they offered some theories.
A national abortion ban, if passed by Congress, would override state-level protections seven ballot measures passed Tuesday. But even as Republicans win control of the HouseSuch a federal restriction is also unlikely, four experts say. Trump has said he would not sign such a ban. (However, he has declined to say whether he would veto it if it landed on his desk.)
More likely, experts suggested, are efforts to restrict access to abortion pills, especially when they are administered via telehealth or delivered by mail. Medication abortions accounted for 63% of all abortions in the country last year. This is evident from a March study by the Guttmacher Institutea research organization that supports access to abortion.
“The threats to drug abortion will be closely monitored, especially in the early months and first year of his administration,” said Amy Friedrich-Karnik, director of federal policy at the Guttmacher Institute.
Tuesday’s election results indicated continued public support for abortion rights in general. Ballot measures have been passed to protect access to abortion in seven of the ten states; in Arizona and Missouri, those victories overturned existing restrictions, while the five other states that passed such initiatives previously did not restrict abortion.
In Florida, a measure to promote abortion rights received 57% of the vote, but failed because state law required at least 60% of the vote. South Dakota and Nebraska, meanwhile, became the first two states since the Supreme Court’s Dobbs decision in 2022 where a majority of voters rejected proposed constitutional amendments protecting abortion access. (A negative initiative in Nebraskathat passed may have confused some voters there, Friedrich-Karnik said.)
Given these outcomes, as well as voters’ past support for abortion rights, many Republican senators could be wary of backing a federal ban, experts say.
“Republican politicians have walked away from their staunch anti-abortion policies over the past two years because of how popular – clearly – abortion access is,” said Katie O’Connor, senior director of federal abortion policy at National Women’s. Law Center.
But several experts described other paths to abortion restrictions that wouldn’t necessarily involve Congress.
One option is through Trump’s appointees at the Food and Drug Administration. Those leaders could try to get the agency to roll back certain changes made between 2016 and 2021 (across three presidential administrations, including Trump’s) that expanded access to the abortion drug mifepristone. This could include reinstating the requirement that abortion pills be distributed in person. The FDA’s new leaders could also try to revoke the drug’s license.
Another path is for Trump appointees at the Justice Department to choose not to defend access to abortion pills when legal challenges arise. Although the Supreme Court a case dismissed In June, seeking to restrict access to mifepristone, the attorneys general of Idaho, Kansas and Missouri filed a similar lawsuit last month.
Both cases were filed in federal court in Amarillo, Texas the sole judge, Matthew Kacsmaryk, was appointed by Trump. Kacsmaryk previously ruled suspend FDA approval for mifepristonea decision that higher courts have rejected. But if Kacsmaryk rules the same way again, legal experts say, Trump’s Justice Department could choose not to appeal, allowing the ruling to go into effect.
Another option for Trump’s Justice Department: threaten to enforce the Comstock Act, an 1873 law that bans the sending and receiving of “obscene” materials and materials designed or intended to induce an abortion.
A broad interpretation of the Comstock Act could allow the Justice Department to hold people criminally liable for administering surgical abortions and medication abortions, since it could be argued that the law would prohibit the distribution of abortion pills or medical equipment used in abortion procedures. is used is not allowed. The penalty for violating this law is a maximum of five years in prison.
“All it would take is one person in the DOJ or a zealous U.S. attorney to threaten a clinic with criminal penalties under the Comstock Act, and that could potentially create a huge chill among health care providers who offer abortions” , says Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University in Boston.
The Justice Department could also use the Comstock Act to threaten legal action against abortion pill manufacturers.
However, O’Connor said she doesn’t expect these strategies to be successful.
“Any attempt to abuse that law to ban abortion nationwide, whether it’s banning medication abortion or all abortions nationwide, would be met with very fierce opposition, both politically and legally,” he said. them.
Friedrich-Karnik said Trump could at least restore some of the policies implemented during his previous administration that made it harder to obtain abortions, such as a rule that bars providers who receive certain federal subsidies from referring patients for abortion care.
“A lot of the policies that were in place during the first Trump administration and then dismantled by the Biden administration — we would expect all of those policies to come back,” she said.