Outright Ban or Conditions: What Trump's Win Means for Abortion Rights in the U.S.

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If Donald Trump wins a second term in office while the Republicans do not gain control of Congress, there are serious concerns regarding the future of abortion access in the United States. Experts warn that Trump could still inflict significant damage to abortion rights through federal actions and judicial appointments. A nightmare scenario for advocates of abortion rights is the possibility of a Republican-controlled Congress enacting sweeping national restrictions or even an outright ban on abortion. Vice President Kamala Harris has been a strong advocate for a federal law protecting abortion rights; however, passing such legislation would require Democratic control of both the House and Senate along with the presidency.

Even without congressional support, Trump could initiate policies that would harm abortion access. According to American University law professor Lewis Grossman, although Trump has suggested a more moderate approach during the 2024 campaign—indicating he might veto any anti-abortion legislation—there is concern about the ultra-conservative Project 2025. This document, published by the Heritage Foundation, serves as a blueprint for aggressive executive restrictions and includes insights from former Trump officials. While Trump has distanced himself from the document, the proposed measures remain troubling.

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One immediate target could be abortion pills, particularly mifepristone and misoprostol, which accounted for nearly two-thirds of U.S. abortions last year, according to the Kaiser Family Foundation. Medical abortion has been legally approved since 2000 and used to require in-clinic visits, but the COVID-19 pandemic allowed for telehealth access to these medications, a policy the Biden administration has made permanent. Legal experts like George Washington University law professor Sonia Suter speculate that a Trump administration might reimpose in-person requirements for obtaining abortion pills or roll back existing regulations. While rescinding approval for these medications is a possibility, reinstating prior in-clinic mandates would be a simpler initial step.

Angie Jean-Marie of Plan C, a nonprofit focused on improving abortion access, warns that if access to mifepristone is restricted, healthcare providers may rely more heavily on misoprostol, which has fewer regulatory hurdles since it is already widely approved for various medical uses. If Harris wins the election, advocates would push for the availability of these pills without a prescription.

Another area of concern is the potential revival of the Comstock Act, a 19th-century law that prohibits mailing “obscene” materials, including items used to produce abortion. The Biden administration currently interprets this law as inapplicable to approved abortion pills, but experts warn that a broader interpretation could apply to anything facilitating an abortion, effectively creating a national ban and disrupting supply chains in clinics and hospitals in states where abortion remains legal or could soon be permitted through upcoming state-level referendums.

Conservative legal scholar Josh Craddock emphasizes that enforcing existing laws reaffirmed by Congress is not "nefarious" or "backdoor," but rather a straightforward exercise of legislative authority. Additionally, a Trump administration could seek to undo privacy protections established under the Biden administration for women seeking abortions out of state, which could open the door to potential prosecutions for women returning to states with stricter abortion laws. Even though the Supreme Court's conservative majority has overturned Roe v. Wade, the power to appoint federal judges remains critical in shaping the future of abortion rights in the U.S.

As judicial battles loom on the horizon, courts will likely be called to determine the legality of state laws that make it harder for women to access care in states more supportive of abortion rights. Pro-abortion advocates are actively preparing for potential challenges. Jean-Marie notes that they are developing strategies for the weeks leading up to a possible Trump inauguration, including stockpiling pills, sourcing medications from overseas, and establishing community support networks.

In anticipation of a changing political landscape, pro-abortion organizations have launched the "You Have Options" campaign to ensure women have access to essential resources, regardless of the election's outcome on November 5. This proactive approach underscores the commitment of abortion rights defenders to safeguard access in the face of potential federal restrictions.

Oct. 31, 2024 10:12 a.m. 319

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