“What Trump’s victory could mean for the future of abortion rights”, NBC News

There are several ways Trump could further limit abortion access without breaking his campaign promise not to implement a national ban, experts said.

Demonstrators protest at the national Women’s March at Freedom Plaza in Washington on Saturday. Jose Luis Magana / AP

Nov. 7, 2024

By Aria Bendix and Randi Richardson

The Summary

• After an election in which abortion rights were a major issue, focus is turning to the policy changes Donald Trump could make as president.
• Trump has said that he wouldn’t sign a federal abortion ban and that states should decide their own policies.
• But experts pointed to ways a new Trump administration could restrict abortion nationwide without explicitly banning it.

President-elect Donald Trump’s victory in an election in which abortion rights were a heavy focus raises major questions about what might come next for abortion access in the U.S. 

During the final stages of his campaign, Trump said he thought states should determine their own abortion policies. But his position on the issue has varied widely — in a March interview, he signaled support for a nationwide ban on abortions after 15 weeks’ gestation, and as president, he supported a House bill that would have banned abortion nationwide after 20 weeks. During his 2016 campaign, Trump pledged to appoint Supreme Court justices who could help overturn Roe v. Wade. As president, he accomplished that goal and has at times boasted about it. 

Meanwhile, Vice President-elect JD Vance has suggested that he would support a national law limiting abortion. More recently, he adopted Trump’s stance of letting states decide.

The Trump campaign didn’t respond to a request for comment.

Because of those inconsistencies, policy experts said, there’s no clear road map for the future of abortion in a second Trump administration — though they offered some theories. 

A national abortion ban, if approved by Congress, would override state-level protections, including the seven ballot measures that passed Tuesday. But even if Republicans win control of the House, as well, that kind of federal restriction is unlikely, four experts said. Trump has said he wouldn’t sign such a ban. (He has declined to say, however, whether he would veto one if it landed on his desk.) 

More likely, experts suggested, are efforts to restrict access to abortion pills, especially when they are administered through telehealth or delivered by mail. Medication abortions accounted for 63% of all abortions in the country last year, according to a March study by the Guttmacher Institute, a research organization that supports abortion access.

“The threats to medication abortion is what we’re going to be watching most closely, especially in the first months and year of his administration,” said Amy Friedrich-Karnik, director for federal policy at the Guttmacher Institute.

Tuesday’s election results signaled continuing public support for abortion rights overall. Ballot measures to protect abortion access passed in seven of 10 states; in Arizona and Missouri, those victories overturned existing restrictions, while the five other states that passed such initiatives didn’t previously restrict abortion. 

In Florida, an abortion-rights measure got 57% of the vote but failed because state law required at least 60%. South Dakota and Nebraska, meanwhile, were the first two states since the Supreme Court’s Dobbs decision in 2022 where majorities of voters rejected proposed constitutional amendments to protect abortion access. (An opposing ballot initiative in Nebraska, which passed, may have confused some voters there, Friedrich-Karnik said.)

Given those outcomes, as well as past voter support for abortion rights, many Republican senators might be wary of supporting a federal ban, experts say.

“Republican politicians have been running away from their staunch anti-abortion policies for the past two years because of how popular, it is clear, that abortion access is,” said Katie O’Connor, senior director of federal abortion policy at the National Women’s Law Center.

But several experts described other paths to abortion restrictions that wouldn’t necessarily involve Congress.

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One option is via Trump’s appointees to the Food and Drug Administration. Those leaders could try to get the agency to roll back certain changes made from 2016 to 2021 (in three presidential administrations, including Trump’s) that expanded access to the abortion medication mifepristone. That could include reinstituting a requirement that abortion pills be dispensed in person. The FDA’s new leaders could also try to rescind the licensing of the drug.

Another path is for Trump appointees to the Justice Department to choose not to defend abortion pill access when legal challenges arise. Although the Supreme Court dismissed a case in June that sought to restrict access to mifepristone, the attorneys general of Idaho, Kansas and Missouri filed a similar suit last month. 

Both cases were filed in a federal court in Amarillo, Texas, where the sole judge, Matthew Kacsmaryk, is a Trump appointee. Kacsmaryk previously ruled to suspend the FDA’s approval of the mifepristone, a decision higher courts overruled. But if Kacsmaryk rules the same way again, legal experts said, Trump’s Justice Department could choose not to appeal, thereby allowing the ruling to take effect. 

Another option for Trump’s Justice Department: threaten to enforce the Comstock Act, an 1873 law that prohibits mailing and receiving “obscene” materials and those designed or intended to procure an abortion.

A broad interpretation of the Comstock Act might allow the Justice Department to hold people criminally liable for administering surgical and medication abortions, since it could be argued that the law doesn’t allow distribution of abortion pills or medical equipment used in abortion procedures. The penalty for violating the act is up to five years in prison.

“All it takes is one person in the DOJ or some zealous U.S. attorney to threaten a clinic with criminal sanction under the Comstock Act, and that could potentially cause a tremendous chill among health care providers that are providing abortion,” said 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 the manufacturers of abortion pills.

However, O’Connor said she doesn’t foresee those strategies’ being successful.

“Any attempts to misuse that law to ban abortion nationwide, whether that’s banning medication abortion or all abortions nationwide, would be met with really fierce opposition, both politically and legally,” she said.

Friedrich-Karnik said that at the very least, Trump could reinstate some of the policies implemented during his previous administration that made abortions harder to obtain, like a rule prohibiting 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 that were then dismantled by the Biden administration — we would expect all those policies to come back,” she said.