Anti-abortion protesters listen to President Donald Trump as he speaks at the 47th annual March for Life in Washington, DC on January 24, 2020.
Olivier Douliery | Afp | Getty Images
Voters in seven out of 10 states this week approved ballot measures protecting abortion rights, a hot-button issue that helped keep Americans turning out at 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 at stake.
Trump has waffled considerably on his stance on abortion, most recently stating that he would not support a federal ban and would like to leave the matter to the states. But Trump and his federal appointees could further restrict federal abortion through methods that do not require Congress to pass new laws.
“The more restrictions on abortion are imposed over the next four years, the worse the health consequences will be. People are suffering and dying needlessly,” said Katie O’Connor, senior director of federal abortion policy at the National Women’s Law Center.
Abortion access in the U.S. has declined in the two years since the Supreme Court's Roe v. Wade overturned and abolished the federal constitutional right to trial is already in flux – a decision Trump has taken credit for since reshaping the court. Last year, more than 25 million women ages 15 to 44 lived in states with more restrictions on abortion than before the court's ruling in 2022, according to PBS.
Experts say the Trump administration's continued crackdown on abortion could endanger the health of many patients, particularly those with lower incomes or people of color.
“As long as we have a government that is not fully committed to abortion access for all who seek it, there will be chaos and confusion on the ground about what is legal and what is available,” O'Connor said. “It will contribute to the ongoing crisis in health care access that we see with abortion.”
It is unclear what Trump's actions on this issue might be. There is little public support for Congress to pass nationwide abortion bans, according to a June poll conducted by The Associated Press and the NORC Center for Public Affairs Research. At least 70% of Americans oppose a federal ban on abortion or a ban on the procedure after six weeks.
If Trump decides to restrict access, experts say that could include restricting the use of medication abortions, especially if they are performed via telemedicine or delivered by mail.
According to a March study by the Guttmacher Institute, a research organization that supports abortion access, medication is the most common method of terminating a pregnancy in the U.S., accounting for 63% of all abortions in the U.S. last year.
Trump's campaign did not immediately respond to a request for comment.
The decades-old Comstock Act
According to Julie Kay, co-founder and executive director of the Abortion Coalition for Telemedicine, a Trump administration could severely restrict or ban medication abortion by enforcing an interpretation of the long-defunct Comstock Act.
The law, passed in 1873, makes it a federal crime to send or receive drugs or other abortion-related materials by mail. It was not widely enforced for decades.
National Women's Strike is holding a protest outside the U.S. Supreme Court in Washington on Monday, June 24, 2024, to mark the second anniversary of the Supreme Court's Dobbs v. Jackson decision, which overturned Roe v. Wade.
Bill Clark | Cq-roll Call, Inc. | Getty Images
Trump's administration could use the law to block and prevent doctors from shipping and distributing abortion pills and potentially all medical devices used in abortion procedures, such as dilators and suction catheters, according to Kelly Dittmar, director of research at the US hospital to perform abortions in hospitals Rutgers Center for American Women and Politics.
To pass it, Trump would have to appoint an anti-abortion attorney general, which would require Senate confirmation.
The Biden administration claims that the provisions of the Comstock Act are outdated. Trump said in August he had no plans to enforce the Comstock Act.
But anti-abortion advocates and people close to Trump, including his vice presidential running mate, Vice President-elect JD Vance, have called for the opposite. Some of Trump's former advisers also support using the Comstock Act to restrict abortion pills in their conservative policy proposal, Project 2025. This also applies to every major anti-abortion organization in the country.
There would likely be legal resistance to any attempt to enforce it, O'Connor noted.
This issue could end up in the Supreme Court, whose justices have been open to the idea that the Comstock Act could ban abortions. Earlier this year, Justices Samuel Alito and Clarence Thomas repeatedly invoked the Comstock Act during oral arguments in a medication abortion case.
Appointing anti-abortion actors to key positions in government agencies
Trump could also appoint anti-abortion leaders to control key federal agencies that could use executive power to severely restrict or ban the procedure in the US. These include the Department of Health and Human Services, the Food and Drug Administration, and the Department of Justice.
“These authorities have been instrumental in clarifying and protecting as much as possible when it comes to abortion rights in a post-Dobbs world,” said Kelly Baden, vice president of policy at the Guttmacher Institute, referring to the Supreme Court decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade.
Trump and his political appointees at the FDA could direct that agency to sharply restrict or possibly eliminate access to mifepristone, one of two drugs used in a common medication abortion regimen.
In 2023, abortion opponents clashed with the FDA in a legal dispute over the agency's more than two-decade-old approval of the drug. In June, the Supreme Court unanimously dismissed the lawsuit against mifepristone, siding with the Biden administration, meaning the commonly used drug could remain widely available.
Mifepristone and misoprostol pills are pictured on Wednesday, October 3, 2018, in Skokie, Illinois.
Erin Holey | Chicago Tribune | Tribune News Service | Getty Images
But Trump's FDA appointees could push to reverse certain changes made from 2016 to 2021 that expanded access to mifepristone. This could include reintroducing requirements that would require in-person dispensing of mifepristone, which would effectively prevent access to the pill via telemedicine.
Telehealth has become an increasingly common way to access abortion bills, accounting for nearly one in five of them in the final months of 2023, according to a research project published in May by the Society of Family Planning.
Restricting telemedicine as an option would have an “incredibly chilling effect” on abortion access, said Alina Salganicoff, senior vice president and director of women's health policy at KFF, a health policy research organization.
“We are likely to see more people having to travel to states where abortion is banned, more delays in seeking medical care, and the possibility that more of them will actually be denied that care because of it “It’s difficult to do the procedure in person,” she said.
New FDA leaders could also try to take a more extreme approach: revoking the approval of mifepristone altogether. Both strategies would ignore significant scientific research supporting the safe and effective use of mifepristone in the United States, experts said.
Trump vaguely indicated in August that he wouldn't rule out ordering the FDA to cut off access to mifepristone. Just days later, Vance attempted to walk back those comments.
Trump's comments appear to be a departure from his stance in June, when the former president said during a CNN debate that he would “not block” access to mifepristone.
Revive old rules, gut Biden's
At a minimum, Trump could reinstate some of the policies implemented in his first term that made access to abortion more difficult and undo some of the Biden administration's efforts 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 about reproductive rights at 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” that he introduced in 2019 and that the Biden administration reversed in 2021.
The rule prohibited providers who are part of the federally funded Title X Family Program from referring patients for abortion care or providing counseling that includes abortion information. title
Guttmacher's Baden said the rule has “decimated” Title X's network of family planning clinics and limited its ability to serve low-income patients. She said those clinics are “still recovering from this.”
“I see no reason to believe he wouldn’t reinstate this rule in the first 100 days,” Baden said.
Baden said a Trump administration could also quickly roll back some of Biden's executive orders, memoranda and other efforts aimed at protecting and expanding access to reproductive health services.
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