Anti-abortion demonstrators listen to President Donald Trump as he speaks at the 47th annual “March for Life” in Washington, D.C., Jan. 24, 2020.
Olivier Douliery | Afp | Getty Images
Voters in seven out of 10 states approved ballot measures this week to safeguard abortion rights, a hot-button issue that helped drive Americans to the polls.
But President-elect Donald Trump‘s victory early Wednesday could make access to the procedure more vulnerable and uncertain across the U.S., health policy experts warned, leaving the reproductive well-being of many women hanging in the balance.
Trump has waffled considerably on his position on abortion, most recently saying he would not support a federal ban and wants to leave the issue up to the states. But Trump and his appointees to federal agencies could further restrict abortion on the federal level through methods that won’t require Congress to pass new legislation.
“The more restrictions we see on abortion over the next four years, the worse health outcomes are going to be. People are suffering and dying unnecessarily,” said Katie O’Connor, senior director of federal abortion policy at the National Women’s Law Center.
Abortion access in the U.S. has already been in a state of flux in the two years since the Supreme Court overturned Roe v. Wade and ended the federal constitutional right to the procedure — a decision Trump takes credit for since he reshaped the court. As of last year, more than 25 million women ages 15 to 44 lived in states where there are more restrictions on abortion than before the court’s ruling in 2022, PBS reported.
Experts say a further crackdown on abortion by the Trump administration could put the health of many patients, especially those who are lower-income or people of color, at risk.
“As long as we have a government that is not fully committed to abortion access for everyone who seeks it, there is going to be chaos and confusion on the ground around what is legal and what is available,” O’Connor said. “It’s going to contribute to the ongoing health-care access crisis we’re seeing with abortion.”‘
It’s unclear what Trump’s actions around the issue could look like. There is little public support for Congress to pass nationwide bans on abortion, according to a poll conducted in June by The Associated Press-NORC Center for Public Affairs Research. At least 70% of Americans oppose a federal ban on abortion or a ban on the procedure at six weeks.
If Trump does decide to curb access, experts say, that could include limiting the use of medication abortion, particularly when it is administered through telehealth or delivered by mail.
Medication is the most common method used to end a pregnancy in the U.S., accounting for 63% of all abortions in the U.S. last year, according to a March study by the Guttmacher Institute, a research organization that supports abortion access.
Trump’s campaign did not immediately respond to a request for comment.
The decades-old Comstock Act
A Trump administration could sharply restrict or ban medication abortion by enforcing an interpretation of the long-dead Comstock Act, according to Julie Kay, co-founder and executive director of The Abortion Coalition for Telemedicine.
The law, passed in 1873, makes it a federal crime to send or receive drugs or other materials designed for abortions in the mail. It has not been widely enforced for decades.
National Women’s Strike holds a protest marking the second anniversary of Dobbs v. Jackson, the Supreme Court decision that overturned Roe v. Wade, outside the U.S. Supreme Court in Washington on Monday, June 24, 2024.
Bill Clark | Cq-roll Call, Inc. | Getty Images
Trump’s administration could use the act to block the shipment and distribution of abortion pills and potentially any medical equipment used in abortion procedures, such as dilators and suction catheters, preventing doctors from performing abortions at hospitals, according to Kelly Dittmar, director of research at the Rutgers Center for American Women and Politics.
To enforce it, Trump would have to appoint an anti-abortion U.S. attorney general, which would require Senate confirmation.
The Biden administration maintains that the Comstock Act’s provisions are outdated. Trump in August said he had no plans to enforce the Comstock Act.
But anti-abortion advocates and people in Trump’s close circle, including his running mate, Vice President-elect JD Vance, have urged the opposite. Some of Trump’s former advisors, writing in the conservative policy blueprint Project 2025, also endorse the use of the Comstock Act to restrict abortion pills. So does every major anti-abortion organization in the country.
There would likely be legal opposition to any effort to enforce it, O’Connor noted.
That issue could end up at the Supreme Court, whose justices have expressed openness to the idea that the Comstock Act could ban abortion. Earlier this year, Justices Samuel Alito and Clarence Thomas repeatedly invoked the Comstock Act during oral arguments in a case regarding medication abortion.
Appointing anti-abortion actors to key agency roles
Trump could also appoint anti-abortion leaders to control key federal agencies that could use executive power to severely limit or ban the procedure in the U.S. That includes the Department of Health and Human Services, the Food and Drug Administration and the Department of Justice.
“Those agencies have been instrumental in clarifying or protecting as much as possible in a post-Dobbs world when it comes to abortion rights,” said Kelly Baden, vice president for policy at the Guttmacher Institute, referring to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
Trump and his political appointees to the FDA could direct that agency to severely restrict or potentially eliminate access to mifepristone, one of two drugs used in a common medication abortion regimen.
Anti-abortion physicians squared off with the FDA in 2023 in a legal battle over the agency’s more than two-decade-old approval of the medication. In June, the Supreme Court unanimously dismissed the challenge to mifepristone and sided with the Biden administration, meaning the commonly used medication could remain widely available.
Mifepristone and Misoprostol pills are pictured Wednesday, Oct. 3, 2018, in Skokie, Illinois.
Erin Hooley | Chicago Tribune | Tribune News Service | Getty Images
But Trump’s FDA appointees could push to roll back certain changes made from 2016 to 2021 that expanded access to mifepristone. That could include reinstating requirements that would require mifepristone to be dispensed in person, which would effectively eliminate access to the pill via telehealth.
Telehealth has become an increasingly common way to access abortion bills, accounting for nearly 1 in 5 of them during the last months of 2023, according to a research project published in May by the Society of Family Planning.
Restricting telehealth as an option would have an “incredibly chilling effect” on abortion access,” said Alina Salganicoff, a senior vice president and the director of Women’s Health Policy at KFF, a health policy research organization.
“We will likely see more people in states where abortion is banned having to travel, more delays in getting care and the potential for more of them actually being denied that care due to difficulties related to getting the procedure in person,” she said.
New FDA leaders could also attempt to use a more extreme approach: rescinding mifepristone’s approval altogether. Either strategy would disregard significant scientific research demonstrating mifepristone’s safe and effective use in the U.S., experts said.
Trump vaguely suggested in August that he would not rule out directing the FDA to revoke access to mifepristone. Just days later, Vance attempted to walk back those remarks.
Trump’s comments appear to be a shift from his stance in June, when the former president said during a CNN debate that he “will not block” access to mifepristone.
Reviving old rules, gutting Biden’s
At the very least, Trump could reinstate some of the policies implemented during his first term that made abortions harder to obtain and gut some of the efforts that the Biden administration used to expand access.
Rep. Lois Frankel, D-Fla., left, points out states with restricted reproductive rights as Rep. Joyce Beatty, D-Ohio, and Rep. Joe Neguse, D-Colo., hold the map during a news conference on reproductive rights in the U.S. Capitol on Wednesday, May 8, 2024.
Bill Clark | Cq-roll Call, Inc. | Getty Images
Trump could reinstate a so-called domestic gag rule, which he implemented in 2019 and that the Biden administration reversed in 2021.
The rule prohibited providers that are part of the federally funded Title X family program from referring patients for abortion care or providing counseling that includes abortion information. Title X is a decades-old program that provides family planning and preventive health services to patients, especially lower-income individuals.
Guttmacher’s Baden said the rule “decimated” Title X’s network of family planning clinics and constrained its ability to serve low-income patients. She said those clinics are “still recovering from that.”
“I see no reason to assume that he wouldn’t go back to reinstating that rule in the first 100 days,” Baden said.
A Trump administration could also quickly nullify some of Biden’s executive orders, memorandums and other efforts that aimed to protect and expand access to reproductive health services, according to Baden.
