Summary
- After an election in which abortion rights were a major issue, the focus is on policy changes that Donald Trump might make as president.
- Trump said he would not sign a federal abortion ban and that states should decide their own policies.
- But experts pointed to ways the new Trump administration could limit abortion domestically without outright banning it.
The victory of the newly elected president of the United States, Donald Trump abortion rights were very much in the spotlight It raises major questions about what the future holds for abortion access in the United States
In the final stages of his campaign, Trump said he thinks states should determine their own abortion policies. But his The position on the issue is very different – he pointed out in the March interview support for a nationwide ban About abortions after 15 weeks of pregnancy and supported it as president House bill it would ban abortions nationwide after 20 weeks. During the 2016 campaign, Trump promised to appoint Supreme Court justices who could help overturn the fight against Roe Wade. As president, he achieved this goal and he brags about it from time to time.
Vice President-elect JD Vance, meanwhile, suggested that support a national law restricting abortion. More recently, he has embraced Trump’s position of letting the states decide.
The Trump campaign did not respond to a request for comment.
Because of these inconsistencies, policy experts say there is no clear road map for the future of abortion. the second Trump administration – although they offer some theories.
A national abortion ban, if approved by Congress, would prevent state-level protections, including abortions Seven election events held on Tuesday. But even Republicans Takes control of the houseAlso, four experts said that such a federal restriction is unlikely. Trump said would not sign such a ban. (But he declined to say whether he would veto it if it landed on his desk.)
Attempts to limit access to abortion pills, especially when they are provided via telehealth or delivered by mail, experts say. Last year, 63% of all abortions in the country were abortions with medicine. According to a study by the Guttmacher Institute in Marchis a research organization that supports access to abortion.
Amy Friedrich-Karnik, director of federal policy at the Guttmacher Institute, said, “The threats to medication abortion are what we will be watching most closely, especially in the first months and year of his administration.”
Tuesday’s election results signaled continued public support for abortion rights overall. Ballot measures to protect abortion access passed In seven out of 10 states; Those victories in Arizona and Missouri overturned existing restrictions, while five other states that passed such initiatives had not previously restricted abortions.
Florida’s abortion rights measure received 57% of the vote, but failed because state law required at least 60%. South Dakota and Nebraska were the first two states in 2022 where a majority of voters rejected proposed constitutional changes to protect access to abortion after the Supreme Court’s Dobbs decision. (An Opposes ballot initiative in Nebraska(That confused some voters there, Friedrich-Karnick said.)
Given these results, as well as former voters’ support for abortion rights, many Republican senators may be reluctant to support a federal ban, experts say.
“Republican politicians have been running away from their tough anti-abortion policies for the past two years because it’s clear how popular access to abortion has become,” said Katie O’Connor, director of federal abortion policy at National Women’s. Law Center.
But several experts described other ways to limit abortion that don’t necessarily involve Congress.
One option is through Trump’s Food and Drug Administration appointees. Those leaders could try to roll back certain changes to the agency that expanded access to the abortion drug mifepristone between 2016 and 2021 (under three presidential administrations, including Trump’s). This could include reinstating the requirement to dispense abortion pills in person. The new FDA leaders may also try to revoke the drug’s license.
Another way is for Trump appointees to the Justice Department to choose not to defend access to the abortion pill when legal challenges arise. Although the Supreme Court rejected the case The attorneys general of Idaho, Kansas and Missouri, which sought to limit access to mifepristone in June, filed a similar lawsuit last month.
Both cases were filed in federal court in Amarillo, Texas the sole judge, Matthew Kaczmarik, is a Trump appointee. Kacsmaryk previously managed suspend FDA approval for mifepristonehigh courts overturned a decision. But if Kacsmaryk is sentenced again, legal experts say Trump’s Justice Department could choose not to appeal, thereby allowing the sentence to stand.
Another option for Trump’s Justice Department: Threaten to enforce the Comstock Act, which was passed in 1873 and banned the sending and receiving of “obscene” material and material designed or intended to promote abortion.
A broad interpretation of the Comstock Act could allow the Department of Justice to prosecute people for surgical and medication abortions because it could be argued that the law does not allow the distribution of abortion pills or medical equipment used in abortion procedures. Violation of the act is punishable by up to five years in prison.
“All it takes is one person at the DOJ or some zealous US attorney to threaten a clinic with criminal penalties under the Comstock Act and that can create a huge chill among abortion providers,” said Director Wendy Parmet. 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 he doesn’t foresee these strategies being successful.
“Any attempt to abuse this law to ban abortion nationwide, whether it’s medication abortions or all abortions nationwide, is going to be met with really fierce opposition, both politically and legally,” he said.
At the very least, Friedrich-Karnick said Trump could reinstate some policies that made abortions more difficult under the previous administration, such as a rule barring providers who receive certain federal grant money from referring patients for abortion care.
“A lot of the policies that were in place in the first Trump administration and were later rescinded by the Biden administration — we expected all of those policies to come back,” he said.