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Donald Trump has been talking differently about abortion lately. The former president, who once promised to sign a federal ban into law, now insists that, if reelected, he would let each state chart its own course on the issue. Some states might ban all abortions, try to restrict pregnant women’s out-of-state travel, or perhaps even monitor their pregnancies. Others would allow abortions for almost any reason up to viability. Trump says he would let it all happen. As he told Time magazine, “I’m leaving everything up to the states.”
The phrasing suggests that a second Trump presidency would take the federal government out of the abortion debate, an approach that evokes restraint and polls pretty well. But almost no one who works on either side of the issue believes that Trump will be so passive. If elected in November, Trump would reenter office with broad executive authority to restrict abortion access. Both his loyal anti-abortion supporters and his staunch pro-abortion-rights opponents agree that he would use at least some of those powers. The only real questions are which ones, and to what extent?
“Essentially, states’ rights is Trump’s way of saying, ‘If you don’t like the GOP’s position on abortion, you can ignore it when it comes to me, because my being in office is not going to make a difference,’” Mary Ziegler, a UC Davis law professor who supports abortion rights, told me. “He’s been pretty explicit at various points that that’s what he thinks Republicans should say to win, and that their primary goal right now, when it comes to abortion, should be winning.”
[From the January/February 2024 issue: A plan to outlaw abortion everywhere]
Trump’s position on abortion has long appeared to track his political instincts rather than any fixed personal conviction. In 1999, he described himself as “very pro-choice.” During the 2016 presidential campaign, courting evangelical support, he recast himself as strictly anti-abortion. He vowed to sign a 20-week abortion ban, defund Planned Parenthood, and nominate Supreme Court justices who would overturn Roe v. Wade. Since Roe fell, he has been eager to take credit—he declared last summer that he was “proud to be the most pro-life president in American history”—while distancing himself from actual anti-abortion policies, which are broadly unpopular. Earlier this year, after criticizing Governor Ron DeSantis for signing a six-week ban into law in Florida, he toyed with endorsing a 15- or 16-week national ban, but has backed away since clinching the Republican nomination. A federal ban, Trump told Time, would “never happen” anyway, because even a Republican-controlled Congress wouldn’t have the votes.
He’s right about that. A national 15-week ban would have almost no chance in Congress, and Trump therefore has no reason to alienate moderate voters by supporting one—especially given that he would have the tools to set even stricter policy without congressional buy-in.
At a minimum, a second Trump administration is likely to reverse the steps that the Biden administration has taken to shore up abortion access. These include instructing hospitals in abortion-ban states that they must perform abortions in cases of medical emergencies, making it harder for law enforcement to access the medical records of women who travel out of state to receive an abortion, and, most significant, allowing abortion pills to be prescribed without an in-person doctor visit. The change was a major factor in abortion numbers going up after the Dobbs decision, in large part because women in states that have banned the procedure can still obtain abortion drugs from out of state. From July to September last year, at least one of every six abortions nationwide, about 14,000 a month, was completed via telehealth, according to research by the Society of Family Planning.
Roger Severino, who served as a Health and Human Services official during Trump’s first term, told me that he expects a second Trump administration to immediately reverse these executive actions. Severino, who is not affiliated with the Trump campaign, said that the best evidence for what a second Trump term would look like is what Trump did during his first four years in office. “It was the most pro-life administration in history,” he said.
If Trump stopped at rolling back Biden’s abortion policies, that would arguably fit the definition of leaving the issue to the states. But it would also represent a radical change from the status quo because states that prohibit abortion would have far more power to make sure that women who live within their borders cannot access the procedure. The effect on abortion numbers would be “enormous,” Greer Donley, a law professor at the University of Pittsburgh, told me. “All of a sudden, you would be back in a world where people would have to use brick-and-mortar clinics to get abortion care.”
And Trump could go much further. He could appoint Food and Drug Administration officials who decide to revisit the approval of mifepristone, the first pill in a two-drug medication-abortion regimen. (The second drug is misoprostol.) Many members of the anti-abortion movement have argued that abortion pills are more dangerous than surgical abortions. (Some women have faced serious complications, though studies show the risks are far lower than those associated with most common drugs, or with giving birth.) In “Project 2025,” a blueprint for a second Trump term organized by the Heritage Foundation, Severino wrote that the FDA is “ethically and legally obliged to revisit and withdraw its initial approval of abortion pills.”
If the FDA reversed its approval of mifepristone, women could still get misoprostol-only abortions, which are broadly considered to be safe and effective but tend to involve worse side effects, such as vomiting and diarrhea. The Alliance Defending Freedom, an influential conservative Christian legal organization that has challenged mifepristone’s approval in court, wants to go even further. Ryan Bangert, a senior vice president at ADF, told me that the group intends to limit misoprostol access as well. A victory could effectively stop all medication abortion, which currently accounts for nearly two-thirds of the country’s abortions.
Trump could achieve similar results in other ways. The Comstock Act, a 19th-century statute, prohibits mailing “every article, instrument, substance, drug, medicine, or thing” intended to be used for abortion. It applies to the U.S. Postal Service and private carriers. The law sat mostly dormant for the past half-century, as Roe v. Wade rendered it a dead letter. Opinions differ as to the exact scope of its prohibitions. When the Dobbs decision came out, Biden’s Department of Justice announced that Comstock would apply only to illegal abortions. But Trump’s DOJ could interpret the law more expansively. “Project 2025,” which was written by a group that included some of Trump’s most loyal former officials, explicitly recommends enforcing the law against providers who send abortion pills through the mail. James Bopp Jr., the general counsel of the National Right to Life Committee, a prominent anti-abortion group, expects a Trump DOJ to use Comstock that way. And, he told me, the lobbyists he works with will be doing what they can to make sure that happens. Whether it does will likely come down to whom Trump appoints to key administration positions.
Some experts believe that the Comstock Act can be read to prohibit the delivery of any medical equipment used in surgical abortions. At the broadest level, that interpretation would shut down an implausibly huge swath of non-abortion-related health care. But the next administration could engage in selective enforcement with the aim of imposing a de facto nationwide abortion ban. “Everything you use to produce an abortion is somehow sent through the mail,” David S. Cohen, a Drexel University law professor and abortion-rights supporter, told me. Trump’s administration wouldn’t need congressional approval to enforce the Comstock Act this way. “Trump might even be able to say, ‘Oh, that’s not what I want, but the attorney general is doing it, and who am I to stop the attorney general?’”
Trump has so far refused to clarify his stance on the Comstock Act, telling Time that he would soon be “making a statement” on it. As my colleague Elaine Godfrey has written, many of Trump’s supporters in the anti-abortion movement hope he keeps quiet about the law until he’s safely in office—at which point, they seem confident, he’ll fulfill their hopes. “We don’t need a federal ban when we have Comstock on the books,” Jonathan Mitchell, a lawyer who has argued on Trump’s behalf before the Supreme Court, toldThe New York Times. But, he added, “I think the pro-life groups should keep their mouths shut as much as possible until the election.”
Some lawyers close to Trump aren’t keeping their mouths shut. Jay Sekulow, one of Trump’s lead attorneys in his first impeachment trial, wrote in a brief to the Supreme Court that mailing abortion drugs, devices, or equipment is a federal offense under the Comstock Act. “The prohibition is simple, complete, and categorical,” Sekulow wrote.
[Elaine Godfrey: The pro-life movement’s not-so-secret plan for Trump]
Where will Trump’s political instincts lead him? With no reelection to worry about, he will have less to fear from any backlash. But, by the same token, he will have little reason to pander to the religious right. Severino, the former Trump official, argued that it would be impractical for law enforcement to intercept misoprostol, which has uses besides abortion, and medical tools. “The reach of Comstock has been exaggerated by the left for political purposes,” he told me.
Abortion-rights advocates have heard this accusation before. They were told they were exaggerating the threat of a Trump presidency before the Supreme Court overturned Roe v. Wade, given that the justices publicly insisted it was settled law, Greer Donley told me. And the anti-abortion movement isn’t hiding its wish list for a second Trump term. “Every single thing that people who support abortion rights have been worried about has been coming to pass,” Donley said. “It’s hard to argue that there’s any sort of hyperbole anymore.”
