Packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023 in Rockville, Maryland. (Photo illustration by Anna Moneymaker/Getty Images)
WASHINGTON — President-elect Donald Trump has several choices to make in the coming months about whether his second administration will keep access to contraception and abortion as it is now or implement changes.
While Trump cannot on his own enact nationwide laws or abortion bans without Congress, he and the people he picks for key posts throughout the federal government will have significant influence on reproductive rights nationwide.
During Trump’s first term in office he barred health care organizations that perform or refer patients for abortions from receiving Title X family planning grants, even though there’s a moratorium on using federal funds for abortions unless it’s the result of rape or incest, or the life of the woman is at risk.
Alina Salganicoff, senior vice president and director for women’s health policy at the nonpartisan health research organization KFF, said on a call with reporters Friday that about a quarter of providers withdrew or were disqualified from receiving federal family planning grants as a result of that policy.
“The Title X program basically funds family planning services for low-income people,” Salganicoff explained. “It’s basically a small program, it’s around under $300 million — but it is a critical program to people who don’t otherwise have insurance.”
Abortions as stabilizing care
Trump will also have to decide whether to leave in place guidance from the Biden administration that says a federal law from the 1980s protects health care providers who perform abortions as stabilizing care during an emergency that would affect a woman’s health or life.
That law, known as the Emergency Medical Treatment and Labor Act, or EMTALA, became one point of disagreement between the Biden administration and Republican states that implemented abortion bans or strict restrictions after the Supreme Court ended the nationwide right to an abortion.
U.S. Health and Human Services Secretary Xavier Becerra wrote in a letter released in July 2022 that under the federal “law, no matter where you live, women have the right to emergency care — including abortion care.”
EMTALA is at the center of an ongoing lawsuit between the Biden administration and Idaho over that state’s abortion law. Oral arguments in the 9th Circuit Court of Appeals are set for early December.
Abortion pill
The future of medication abortion, a two-drug regimen approved for up to 10 weeks gestation that’s used in about 63% of abortions nationwide, will be another area the Trump administration could alter without congressional approval.
Salganicoff said there’s no way to know just yet if the U.S. Food and Drug Administration will seek to change prescribing guidelines for medication abortion or revoke the 2000 approval of mifepristone altogether.
“We don’t know whether they’re going to actually review the approval, but I will tell you that it is likely that they will revisit the conditions in which medication abortions, which now account for nearly two-thirds of all abortions in this country, can be provided,” Salganicoff said.
The Trump administration, she said, is likely to focus on revisions made during the Biden administration that allow doctors or other qualified health care providers to prescribe the two-drug medication abortion regimen via telehealth and then have mifepristone and misoprostol mailed to the patient.
Salganicoff anticipates anti-abortion organizations will also encourage the Trump administration to address recent findings from the We Count Project, showing 1 in 10 abortions take place after medication abortion is mailed to people in states with bans or significant restrictions from states that have shield laws.
“This FDA protocol is legal to do that, but clearly this is going to be a target,” she said.
Mailing of abortion medication
The Comstock Act, an anti-obscenity law from the late 19th century that once banned the mailing of boxing photographs, pornography and contraception, will also be front and center after Trump takes the oath of office on Jan. 20.
The law, which is still on the books despite not being enforced in decades, could potentially allow the U.S. Postal Service to prevent the mailing of abortion medications or any other instrument or tool used in abortions.
“The Biden administration’s Department of Justice did a review and said that they are not going to enforce Comstock,” Salganicoff said. “Project 2025 sees it very differently, and even though President-elect Trump has said that he is not going to enforce Comstock, it’s not clear, and there will likely be a lot of pressure to do that.”
Project 2025 is a policy map for a Trump presidency published by the Heritage Foundation. Trump has disavowed any connection with it, although former members of his first administration helped develop it.
Salganicoff said enforcing the Comstock Act would affect access to medication abortion throughout the country, even in states that have reinforced reproductive rights during the last two years.
“Clearly that’s going to tee up a lot of litigation and challenges,” Salganicoff said.
Larry Levitt, executive vice president for health policy at KFF, said during the call that the Trump administration’s possible elevation of people who spread misinformation or disinformation could lead to more confusion about research-based health care.
“I think one thing, particularly with the rise in prominence of RFK Jr., you know, is the potential for misinformation,” Levitt said, referring to Robert F. Kennedy, Jr., a prominent vaccine opponent who endorsed Trump and campaigned extensively with him.
“We turn to the government for reliable data, public health information and scientific information,” Levitt said. “And there’s the potential now, for the government to be not only not an effective source for health information, but in fact, an accelerant for misinformation.”
Donald Trump spoke at the March for Life rally in January 2019 during his first term as president. (Mark Wilson | Getty Images)
The 2024 election results created complicated new realities for reproductive rights in the U.S., with Americans even in a few red states overwhelmingly voting to protect the right to have an abortion while also overwhelmingly electing anti-abortion representatives in state houses, courts, Congress and the White House.
With a Republican trifecta coming to the nation’s capital in January, anti-abortion activist groups are planning for the first potentially friendly presidential administration since the 2022 Dobbs v. Jackson Women’s Health Organization decision overturned Roe v. Wade and eliminated a 50-year federal right to terminate a pregnancy. They aim to end other federal and state protections while vastly expanding restrictions on reproductive health care.
Though many anti-abortion leaders are skeptical of President-elect Donald Trump’s commitment to their cause, they say they are willing to compromise to maintain influence in his administration. Some groups are strategizing how to end-run Trump’s campaign pledge not to enact any federal abortion bans — by heavily restricting medication abortion or trying to ban a common abortion procedure.
“I don’t think we have a champion here for pro-life causes,” said longtime anti-abortion organizer Rev. Patrick Mahoney. “What we have here is someone who will not work against us and try to crush us. We will not see pro-choice federal judges.”
The director of the Christian Defense Coalition and the chief strategy officer of Stanton Public Policy Center told States Newsroom that he is not a supporter of Trump and disagrees with his rhetoric on immigrants. But Mahoney said he is happy Democratic presidential nominee Kamala Harris lost. The vice president had vowed to try to restore federal abortion rights and throughout her career has advocated for reproductive rights. As California attorney general, she prosecuted anti-abortion activists charged with illegally recording abortion providers about a decade ago.
“We can have an opportunity now to begin the second phase after Roe was overturned,” Mahoney said. “We knew overturning Roe was only a starting line, not a finishing line.”
Live Action president Lila Rose was one of the few prominent anti-abortion leaders who called out Trump before the election, after he criticized Florida’s six-week abortion ban and vowed to veto a federal ban. In late August, Rose told Politico she would write in a presidential candidate and would encourage her millions of followers to do the same if Trump did not change course. On her podcast, the millennial activist recently revealed that she met with Trump and asked him to say he would vote against Florida’s abortion-rights amendment, which he did. Days before the election, Rose endorsed Trump on X.
Live Action did not respond to an interview request.
Another anti-abortion leader willing to compromise with the incoming president and Congress is Steven Aden, general counsel at Americans United for Life, the policy shop behind many state and federal abortion restrictions. Aden said he was disappointed the Republican Party removed from its platform a previous commitment to a federal ban.
However, he said his group was still able to inject critical language into the current platform that effectively supports states establishing fetal personhood through the U.S. Constitution’s 14th Amendment, which grants equal protection under the law. The platform also says Republicans “will oppose Late Term Abortion,” a political term used to refer to abortions in the second and third trimesters, the rarest but most restricted types of abortions in the U.S.
“We had direct input into the Trump campaign and framing the pro-life language in the party platform,” Aden told States Newsroom. “The platform language was much pared down, but we believe that the pro-life language preserves the essence of the party’s position on the pro-life issue, and we’re proud of that, and look forward to continuing to work with the incoming Trump administration.”
Federal reproductive rights protections in question
Early into his term, Democratic President Joe Biden began reversing blocks on federal funding domestically and globally for reproductive health organizations that also provide or refer for abortions. Leading up to and following the Dobbs decision, the Biden administration loosened restrictions to the medication abortion regimen, a combination of mifepristone and misoprostol, which has become the most common way of terminating pregnancy in the U.S. during the first trimester. The U.S. Food and Drug Administration allowed abortion medication to be obtained via telemedicine and dispensed directly at pharmacies.
Nearly half the country has partially or fully banned abortions. But abortion numbers have risen since before Dobbs, researchers have reported, attributing the increase in part to expanded access to telemedicine abortion and to more people using online abortion clinics that mail abortion drugs from states with so-called shield laws to those with bans.
Under the U.S. Department of Health and Human Services, regulations could include:
The FDA reinstating medication abortion restrictions, such as requiring multiple in-person appointments and revoking telemedicine. Or altogether revoking the 2000 approval of mifepristone.
Reversing guidelines that under the federal Emergency Medical Treatment and Labor Act, emergency departments at hospitals enrolled in Medicare — even in states with abortion bans — must offer pregnant patients the medical treatment necessary to stabilize an “emergency medical condition.” This law is the subject of an ongoing lawsuit deferred by the U.S. Supreme Court earlier this year. In sharp contrast to the mainstream medical community, anti-abortion advocates argue these guidelines are unnecessary and would allow doctors to broadly interpret a health emergency to mean anything.
When asked about stories of alleged denied care, maternal deaths, and doctor confusion related to state abortion bans, Aden chalked up the problem to a misinterpretation of state laws, which he said should be clarified to address these problems, while noting several times, “I’m not a doctor.” Americans United for Life’s recommended health-exception language in part says abortion should be allowed “to preserve the life of a pregnant woman or to address a serious risk of substantial and irreversible impairment of a major bodily function.”
“That’s a health exception with teeth,” Aden said. “It doesn’t allow for a free-ranging, quote unquote, ‘mental health’ exception that would swallow the rule.”
Funding a study on the potential health effects of abortion pills in the water system from patients miscarrying in their toilets after taking medication abortion drugs. Anti-abortion leaders like Mahoney said they were disappointed with Trump’s pick for HHS secretary, Robert F. Kennedy Jr., who has previously said he supports abortion rights. But Mahoney said he’s hoping to appeal to Kennedy’s skepticism of FDA drug approvals. “How do chemical abortions being flushed down the drain affect our water supply? We’re definitely going to push hard on that,” Mahoney said.
Revoking a rule requiring health clinics that receive federal family planning Title X grants to offer referrals for abortion clinics, which is also the subject of an ongoing federal lawsuit. It is already prohibited to use federal funds for abortions unless the pregnancy is the result of rape or incest, or has become fatal. Activists also want to defund Planned Parenthood, the largest reproductive health center network, and extend tax credits to anti-abortion pregnancy centers.
Enforce part of the 19th century Comstock Act to prohibit the mailing of abortion-inducing drugs. Aden said enforcing this law would likely mean cracking down on online abortion clinics like Aid Access.
Revoke or refuse to enforce the federal Freedom of Access to Clinic Entrances Act, enacted because of the sometimes-violent anti-abortion protests of the 1980s and 1990s. One of several activists sentenced to prison for staging a clinic blockade in Washington, D.C., Lauren Handy was also involved in obtaining aborted fetuses outside the same clinic. Trump had indicated he would potentially pardon Handy and fellow blockaders. Activists have said they will also ask the DOJ to investigate the doctor at the abortion clinic from where Handy obtained the fetuses, of whom she and other activists have accused, without evidence, of infanticide.
The U.S. Departments of Defense and Veterans Affairs could:
The U.S. Agency for International Development could:
Reinstate the so-called Mexico City Policy, which barred federally funding international organizations that provide or refer for abortions.
As they brace for the potential impact of Dobbs without a federal safety net, reproductive justice activists are working to expand access and fight anti-abortion laws, while also protecting new state wins. The election results did not change the fact that most people want abortion access, said Fatima Goss Graves, president and CEO of the National Women’s Law Center, during a recent media press briefing organized by the progressive Robert Wood Johnson Foundation.
“Donald Trump won the election, but so did abortion, and people need to hold this incoming administration to its word that it would not restrict abortion,” Graves said. “We have to square the idea that millions of people in the United States voted for reproductive freedom … but they also will be experiencing a situation that will become even more dire, and that people will feel scared and hopeless in this period.”
Arguments for a national abortion ban
Aden said AUL would support a federal “dismemberment” bill, referring to a proposed ban on a common second-trimester abortion procedure known as dilation and evacuation, or D&E. This procedure involves dilating the cervix and removing the contents of the uterus, typically performed beginning around 12 weeks. It would be a way to effectively get a 12- or 15-week ban without calling it that.
Despite its safety and efficacy record, the D&E procedure has been banned in several states, over the objection of the American Medical Association and the American College of Obstetricians and Gynecologists. It’s part of an old anti-abortion playbook, which under Republican President George W. Bush resulted in a federal ban on another later abortion procedure — dilation and extraction, or D&X — by reframing it as “partial-birth” abortion, which the U.S. Supreme Court upheld in 2007’s Gonzales v. Carhart decision.
Abortion foes describe D&Es as a gruesome procedure, or as Aden puts it, “tearing 13-week-old humans apart limb from limb.” Anti-abortion doctors recommend more risky and invasive procedures like C-sections, even when the abortion is medically indicated.
If D&Es are banned, there would be fewer options for later abortions, which are sometimes necessary, said reproductive-health legal expert Rachel Rebouché, dean of Temple University School of Law in Philadelphia. She noted that some of the U.S. Supreme Court justices have indicated support for abortion restrictions for reasons of preserving fetal dignity rather than preserving maternal health.
“That litigation, from the anti-abortion perspective, depends on saying the fetus is a person with rights that attach at a certain point, if not from conception,” Rebouché told States Newsroom. “Dobbs opens the door wide open for those kinds of regulations. … But the question is, is there a role for the federal government to enact a nationwide ban that would curtail the rights of states that have not gone the way of Idaho or Texas or others?”
Aden said that for now AUL will be more focused on the incremental approach to abortion restrictions, as well as calling for expanded child and prenatal tax credits and other social supports. The attorney, who was 11 when Roe was decided in 1973, is expecting another half-century of litigation over abortion with the hopes that one day the U.S. Constitution gives personhood rights to the unborn, regardless of the stage of that pregnancy. Aden said a so-called Human Life Amendment is likely impossible in the near term, needing approval from two-thirds of both houses of Congress. He said U.S. culture is not there yet.
“It would require a cultural sea change in the way that the majority of Americans view human life in the womb,” Aden said. “That’s our second generational goal. Having won our first generational goal of overturning Roe, we’d love to see the day when every life is welcomed and protected in law. And if that’s through a constitutional amendment, then we’re here for that.”
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