Kamala Harris promoted abortion rights at the center of her campaign, but Donald Trump won the 2024 presidential election. So what does this mean for reproductive rights at the federal level?
The short answer is that there are many ways Trump could ban abortion, and probably not through Congress, even Republican controlled Senate. (It remains unclear whether Republicans will take control of the House.)
The long answer is that as a candidate, Trump waffled on his position on abortion. Despite frequent to brag On appointment of Supreme Court Judges who reversed Roe v. Wade, Trump began to soften his tone in the months leading up to the election, especially when his vice presidential pick, J.D. Vance, began generating negative media attention. for his anti-abortion views.
As election day approaches, Trump began to force He would be “great for women and their reproductive rights” but repeatedly dodged questions about whether he would veto any national abortion ban on his desk. In a presidential debate in September, Trump repeatedly refused to answer the question, insisting that it would not be necessary because abortion rights are now a matter of state discretion. By October, though, he finally said he would veto the federal abortion ban, posting on social media that he “Do not support a federal abortion ban, under any circumstances“
Unfortunately, this is not as reassuring as it sounds.
Federal abortion bans are unlikely to take the form of a bill landing on the president’s desk in 2025. Any bill out of Congress would still require some bipartisan agreement unless lawmakers overturned the filibuster. Already Republican senators Pledged to preserve the filibuster In a Trump administration, and the anti-abortion movement, for its part, isn’t counting on the GOP to push through bills with simple majorities. Given the widespread support for abortion rights across the United States, passing a federal ban could also be politically dangerous for congressional lawmakers in swing or moderate districts, making the near-term prospect of such an effort highly unlikely.
“Quite frankly, unless something really unusual happens in this election, neither party will get the votes in Congress to pass a national law,” Carol Tobias, president of the National Right to Life Committee, said. told the Associated Press Early October. “So it wasn’t really at the top of our list.”
There is a list of them though.
Sending abortion pills by mail is risky
An agenda item at the top of the anti-abortion movement’s list is enforcing the Comstock Act, an 1873 federal law that would have banned anything related to abortion from being sent in the mail. Such a ban would mean restricting not only abortion drugs — the most common method used to end a pregnancy in the United States — but also any medical equipment used during an abortion procedure, such as speculums, suction catheters and dilators.
“We don’t need a federal abortion ban if we have Comstock on the books,” said Jonathan Mitchell, the legislative architect behind a 2021 law in Texas that effectively banned abortion in that state. told the New York Times Earlier this year. Mitchell urged anti-abortion groups to “keep their mouths shut as much as possible until after the election” about the strategy.
was rendered moot by the Comstock Act Ro in the 1970s but was never officially abolished, and now, with Ro Left, many conservatives see it as an ideal vehicle to restrict abortion nationwide, precisely because it would not require the passage of a new federal law.
For months Trump dodged questions from reporters about the Comstock Act, but by August he Finally said He won’t use the old law to ban abortion pills in the mail. But many people in his close orbit, Vice President-electThe record is on record urging the contrary, and was a key item in Project 2025, the infamous policy blueprint drafted by the Heritage Foundation and Many are close to the Trump campaign.
Trump can ban abortion by appointing anti-abortion leaders Main federal agency regulation That includes the Department of Health and Human Services (HHS), the Department of Justice (DOJ), and the Food and Drug Administration (FDA) that can use executive power to restrict reproductive rights.
Kristen Hawkins, president of Students for Life of America, said her top priority is to push Trump to appoint anti-abortion leaders to executive agencies so they can integrate anti-abortion policies into existing federal programs. “I think reversing the Biden-Harris abortion agenda will be vibrant, it will be proactive,” he said. told the New York Times over the summer
Hawkins said her group’s second priority will be to push HHS to protect Planned Parenthood. Although federal funds are already barred from funding abortions, Planned Parenthood receives federal money from the Office of Population Affairs for family planning and preventive health services, including contraception, cancer screenings and STI testing. (In 2019, Trump issued a rule to limit this money, which was The reverse is the case later Under the Biden administration.)
The appointment of anti-abortion leaders to agencies like the FDA and DOJ can influence anti-abortion litigation. In October, three Republican attorneys general (Raoul Labrador in Idaho, Kris Kobach in Kansas, and Andrew Bailey in Missouri) filed a lawsuit to compel the FDA. To severely restrict access to mifepristoneOne of two drugs used to induce abortion. (Although medication abortion carries a lower risk of complications than other widely available medications, it has faced stricter regulation in the United States, largely for political reasons. Since 2016, the FDA has gradually eased these restrictions, including allowing telemedicine prescriptions.)
Although the Supreme Court threw out a similar FDA complaint in the summer, concluding that the plaintiffs lacked standing to bring the suit, the Republican attorney general believes they will be better able to prevail in this new effort. Notably, they too Argument in their complaint That the FDA violated the Comstock Act by allowing abortion bills to be mailed When a The 2022 Biden DOJ opinion ruled this out The Comstock Act does not criminalize mailing abortion pills if the sender lacks intent for illegal use, but the Trump DOJ could interpret the law differently. A Trump FDA can’t fight changing regulations on abortion pills.
The judiciary is waiting
The last major way Trump can promote federal abortion bans is through federal court appointments.
During his first presidential term, for example, Trump appointed one of the nation’s most anti-abortion judges — Matthew Kasmaric — to a federal court in Texas. Kacsmaryk greenlighted the now-overturned legal opinion that the FDA Approval of mifepristone should be withdrawn.
Trump’s The campaign maintains close ties to Leonard Leo, vice president of the right-wing Federalist Society, which helped Trump vet his anti-abortion judicial appointments during his first four years in office. (Leo Assists financial groups to bring cases to the Supreme Court and Orchestrate strategy (For the largely conservative legal movement.)
The anti-abortion movement has made clear that its long-term goal is to provide “embryo personhood”—embryos, fetuses, and fertilized eggs with full human rights and legal protections. This once-in-a-lifetime idea has been gaining traction over the past few years. (Cacsmaric also adopted the idea of “unborn man” and the personhood of the fetus.) At least 19 states have declared that at some stage of pregnancy the fetus is human, A report from Pregnancy JusticeA group that advocates for the rights of pregnant women.
In February, the Alabama Supreme Court issued a decision that held that frozen embryos counted as “children” under state law. In April, the Florida Supreme Court signal openness to hear a future challenge to fetal personhood when its chief justice asked whether Florida’s constitution should include “the unborn” in its equal protection laws.
And majority opinion in favor of 2022 Dobbs v. Jackson Women’s Health Organization, D That case is overturned RoSupreme Court Justice Samuel Alito appears to have laid the groundwork for a fetal personhood challenge by repeatedly emphasizing the significance of “fetal life.” Throughout the spring, Alito Also seems to support the idea A fetus requires the same “stabilization treatment” in the hospital as a pregnant patient.
Codifying a fetal personhood standard could lead not only to a complete ban on abortion but also to most birth control and in vitro fertilization (IVF). While Trump and Republican lawmakers insist they are determined to protect reproductive rights, including IVF and contraception, their anti-abortion judicial picks may do just the opposite.
