President-elect Donald Trump’s victory in an election that focused heavily on abortion rights raises big questions about the future of abortion access in the United States.
In the final stages of his campaign, Trump said he believed each state should decide its own abortion policy. However, his positions on the issue vary widely, with an interview in March suggesting support for a nationwide ban on abortions after 15 weeks of pregnancy, and as president he announced support for a nationwide ban on abortions after 20 weeks. sponsored a House bill to do so. During his 2016 campaign, Trump promised to appoint Supreme Court justices who would help overturn Roe v. Wade. He accomplished that goal as president, and he has occasionally boasted about it.
Meanwhile, Vice President-elect J.D. Vance has signaled that he supports domestic laws restricting abortion. He recently adopted President Trump’s stance of leaving it up to the states to decide.
The Trump campaign did not respond to requests for comment.
Because of these contradictions, policy experts said there is no clear roadmap for the future of abortion in the second Trump administration, although they have offered some theories.
If Congress approves the national abortion ban, it would override state-level protections, including seven ballot measures passed Tuesday. But even if Republicans win a majority in the House, the federal government is unlikely to impose such restrictions, four experts said. President Trump has said he would not sign such a ban. (However, he declined to say whether he would exercise his veto power if it landed on his desk.)
Experts have suggested that efforts to restrict access to abortion drugs, particularly those administered through telemedicine or delivered by mail, are likely. 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.
“Threats to medical abortion will be the ones we will be watching most closely, especially in the first months and year of this administration,” said Amy Friedrich-Kalnik, director of federal policy at the Guttmacher Institute. said.
Tuesday’s election results showed continued public support for abortion rights overall. Ballot measures to protect access to abortion passed in 7 of 10 states. In Arizona and Missouri, these victories overturned existing regulations, but five other states that passed such initiatives had no previous restrictions on abortion.
In Florida, an abortion rights bill received 57% of the vote but failed because state law required at least 60%. Meanwhile, South Dakota and Nebraska became the first states since the Supreme Court’s 2022 Dobbs decision to have a majority of voters reject constitutional amendments to protect access to abortion. (An opponent ballot initiative passed in Nebraska, which may have confused some voters, Friedrich-Kalnik said.)
Given these results and past voter support for abortion rights, many Republican senators may be wary of supporting a federal ban, experts say.
Katie O’Connor, senior director of federal abortion policy at the National Federation of Women, said, “Republican politicians have increased their staunch anti-abortion policy over the past two years because it’s clear that access to abortion is very popular.” They continue to run away from policy.” Law Center.
But several experts described other paths to abortion restrictions that don’t necessarily involve Congress.
One option is through the Food and Drug Administration, appointed by President Trump. These leaders want to force the agency to reverse certain changes made between 2016 and 2021 (under three presidential administrations, including the Trump administration) that expanded access to the abortion drug mifepristone. There is a possibility that This could include re-enacting the requirement that abortion pills be dispensed directly. There is also the possibility that new leadership at the FDA may try to revoke the drug’s approval.
Another path is for President Trump’s appointees to the Justice Department to choose not to defend access to abortion pills when legal challenges arise. The Supreme Court rejected a lawsuit seeking to restrict access to mifepristone in June, but the attorneys general of Idaho, Kansas, and Missouri filed similar lawsuits last month.
Both lawsuits were filed in federal court in Amarillo, Texas, whose sole judge is Matthew Kaczmarik, a Trump appointee. Mr. Kaczmalik had previously ruled to block the FDA’s approval of mifepristone, but a higher court overturned that decision. But legal experts say if Mr. Kaczmalik were to issue a similar ruling again, the Trump administration’s Justice Department could choose not to appeal, which would allow the ruling to take effect.
Another option for the Trump Justice Department is to threaten to enforce the Comstock Act, an 1873 law that prohibits the mailing and receipt of “obscene” or abortion-promoting materials.
A broad interpretation of the Comstock Act could lead to an argument that the law does not permit the distribution of abortion pills or medical devices used in abortion procedures, so the Department of Justice could It may become possible to hold those who committed the act criminally responsible. The penalty for violating this law is up to five years’ imprisonment.
“All it takes is one person at the Justice Department or a zealous U.S. attorney to threaten clinics with criminal penalties under the Comstock Act, which could cause tremendous fear among health care providers providing abortions. “There’s a lot of gender,” said director Wendy Parmet. from the Center for Health Policy and Law at Northeastern University in Boston.
The Justice Department could also use the Comstock Act to threaten lawsuits against abortion pill manufacturers.
However, O’Connor said he does not expect these strategies to be successful.
“Any attempt to misuse this law to ban abortion nationwide, whether it be a ban on medical abortions or a ban on all abortions nationwide, would be met with very strong political and legal opposition. “We’re going to be hit hard,” she said.
Friedrich Kalnik said President Trump has at least put in place restrictions on access to abortion that were put in place during the previous administration, such as rules that prohibited health care providers receiving certain federal subsidies from referring patients for abortion care. He said there is a possibility that some of the policies that have been in place may be reinstated.
“Many of the policies that were introduced in the first Trump administration and then repealed by the Biden administration, we expect all of those policies to be reinstated,” she said.
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