How Trump's victory could change abortion rights in the United States

Voters in seven 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 United States, health policy experts warned, leaving many women's reproductive well-being at stake.

Trump has wavered considerably on his position on abortion; More recently he said he would not support a federal ban and wants to leave the issue up to the states. But Trump and his appointees in federal agencies could further restrict abortion at the federal level through methods that do not require Congress to pass new legislation.

“The more restrictions we see on abortion in the next four years, the worse health outcomes will be. People are suffering and dying unnecessarily,” said Katie O'Connor, senior director of federal abortion policy at the National Women's Law Center. Women.

Abortion access in the United States 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 due process, a decision Trump has taken credit for since he overhauled 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 ruling in 2022, PBS reported.

Experts say a further crackdown on abortion by the Trump administration could put the health of many patients at risk, especially those who are low-income or 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 around what is legal and what is available,” O'Connor said. “It's going to contribute to the current health care access crisis that we're seeing with abortion.”

It's unclear what Trump's actions on the issue might look like. There is little public support for Congress to pass nationwide abortion bans, according to a June poll 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 decides to curb access, experts say, that could include limiting the use of medication abortion, particularly when administered via telehealth or delivered by mail.

Medication is the most common method used to end a pregnancy in the U.S. and 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 access to abortion.

The Trump campaign did not immediately respond to a request for comment.

A Trump administration could drastically restrict or ban medication abortion by enforcing an interpretation of the long-defunct 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 through the mail medications or other materials designed for abortions. It has not been widely applied for decades.

The Trump administration could use the law to block the shipping 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 in hospitals, according to Kelly Dittmar, director of research from the Rutgers Center for American Women and Politics.

To enforce it, Trump would have to appoint an anti-abortion US attorney general, which would require Senate confirmation.

The Biden administration maintains that the provisions of the Comstock Act are outdated. Trump said in August that he had no plans to enforce the Comstock Act.

But abortion advocates and people in Trump's inner circle, including his running mate, Vice President-elect JD Vance, have urged the opposite. Some of Trump's former advisers, writing in the conservative policy project Project 2025, also support using the Comstock Act to restrict abortion pills. The same goes for all the major anti-abortion organizations in the country.

There would likely be legal opposition to any attempt to implement it, O'Connor said.

That issue could end up in 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 involving medication abortion.

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 of 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 at the FDA could order that agency to severely restrict or potentially eliminate access to mifepristone, one of two drugs used in a common medication abortion regimen.

Anti-abortion doctors took on the FDA in 2023 in a legal battle over the agency's approval of the drug more than two decades ago. In June, the Supreme Court unanimously dismissed the mifepristone challenge and sided with the Biden administration, meaning the commonly used drug could remain widely available.

But Trump's appointees to the FDA could push to reverse certain changes made between 2016 and 2021 that expanded access to mifepristone. That could include reinstating requirements that would require mifepristone to be administered in person, effectively eliminating 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 final months of 2023, according to a research project published in May by the Family Planning Society.

Restricting telehealth 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 will likely see more people in states where abortion is banned having to travel, more delays in receiving care, and the possibility that more of them will be denied that care due to difficulties related to the in-person procedure,” he said.

The FDA's new leaders could also try to use a more extreme approach: rescinding mifepristone's approval entirely. Either strategy would ignore important scientific research demonstrating the safe and effective use of mifepristone in the U.S., experts said.

Trump vaguely suggested in August that he would not rule out ordering the FDA to revoke access to mifepristone. Just days later, Vance attempted to walk back those comments.

Trump's comments appear to be a change from his stance in June, when the former president said during a CNN debate that he “will not block” access to mifepristone.

At the very least, Trump could restore some of the policies implemented during his first term that made abortions more difficult to obtain and undo some of the efforts the Biden administration used to expand access.

Trump could reinstate the so-called domestic gag rule, which he implemented in 2019 and which the Biden administration repealed 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 information about abortion. Title X is a decades-old program that provides family planning and preventive health services to patients, especially low-income people.

Guttmacher's Baden said the rule “decimated” the network of Title X family planning clinics and limited their ability to serve low-income patients. He said those clinics are “still recovering from that.”

“I don't see any reason to assume that he wouldn't reinstate that rule in the first 100 days,” Baden said.

According to Baden, a Trump administration could also quickly reverse some of Biden's executive orders, memos and other efforts that were aimed at protecting and expanding access to reproductive health services.