What a Trump return would mean for abortion rights and access across America

Nevin Al Sukari - Sana'a - Sign in favor of proposition 139, the right to abortion initiative, are displayed at the entrance room of the Tucson HQ of Arizona List, an association made to empower and elect progressive pro-choice Democratic women leaders, in Tucson, Arizona, October 16, 2024. — AFP pic

WASHINGTON, Oct 31 — A second Donald Trump presidency could amplify efforts by conservative politicians to restrict abortion access across the United States.

Here’s a closer look at the legal tools available to a future administration intent on limiting abortion access — and how abortion rights defenders are preparing to fight back.

Federal actions

For advocates of abortion rights, the nightmare scenario is a Republican-controlled Congress enacting sweeping national restrictions or an outright ban.

Vice President Kamala Harris has championed a federal law protecting abortion, but that would require Democratic control of the House, Senate, and presidency.

If Trump wins but Republicans do not control Congress, he could still “do a lot of damage to abortion access” through federal actions and judicial appointments, American University law professor Lewis Grossman told AFP.

The Republican former president’s Supreme Court picks were pivotal in dismantling decades of legal precedent protecting the national right to abortion.

While Trump has at times hinted at moderation during the 2024 campaign — even suggesting he might veto any anti-abortion law that lands on his desk — some fear Project 2025 as the real battle plan.

Published by the ultra-conservative Heritage Foundation, the document offers a roadmap for harsher executive branch restrictions, developed with input from former Trump officials. Trump has publicly distanced himself from the document.

A table with literature calling for a YES vote on proposition 139, the right to abortion initiative, is displayed by members of Arizona List, an association made to empower and elect progressive pro-choice Democratic women leaders, at the entrance to the Murphy-Wilmot Library in Tucson, Arizona, October 16, 2024. — AFP pic

New conditions on abortion pills

Experts predict abortion pills could be Trump’s first target.

Mifepristone, which prevents pregnancy progression, and misoprostol, which empties the uterus, accounted for nearly two-thirds of US abortions last year, according to the Kaiser Family Foundation.

Medical abortion, approved by the US Food and Drug Administration since 2000, used to require in-clinic visits. However, during Covid-19, telehealth briefly opened access by mail, a policy that Joe Biden’s government made permanent in 2021.

A Trump administration might reinstate in-person requirements or roll back other eased regulations, said George Washington University law professor Sonia Suter — a simpler step than rescinding approval, though that is also possible.

Angie Jean-Marie of Plan C, a nonprofit focused on abortion access, said that if access to mifepristone is restricted, providers may rely on misoprostol alone, a potential workaround since it’s already approved for various medical uses and subject to fewer regulations.

If Harris wins, Jean-Marie says advocates would push for her to make the pills available without a prescription.

Reviving obscenity law

Anti-abortion activists are eyeing the Comstock Act, a 19th-century law prohibiting the mailing of “obscene” materials, including items for “producing abortion.”

The US Justice Department under Biden currently interprets this law as inapplicable to approved abortion pills.

But Suter told AFP that a broad interpretation could apply that to “anything used to produce an abortion — materials for surgical abortions — which could effectively create a national ban.”

This could disrupt the supply chain in clinics and hospitals across states where abortion is currently legal — or where it may soon be permitted through state-level referendums on November 5.

Conservative lawyer and scholar Josh Craddock told AFP: “There is nothing nefarious or ‘backdoor’ about enforcing the laws that Congress has enacted and repeatedly reaffirmed. “

Sign in favor of proposition 139, the right to abortion initiative, are displayed at the entrance room of the Tucson HQ of Arizona List, an association made to empower and elect progressive pro-choice Democratic women leaders, in Tucson, Arizona, October 16, 2024. — AFP pic

Judicial appointments and more

A Trump administration could also seek to undo the stringent patient privacy protections put in place by Biden for women seeking abortions out-of-state, said Suter, paving the way for possible prosecutions when they return home.

Although the Supreme Court’s conservative majority has already overturned Roe v Wade, experts say the power to appoint federal judges remains paramount.

Courts may soon be called to decide the fate of state laws that make it harder for women to access care in more abortion-friendly states, Grossman explained.

Jean-Marie emphasised that pro-abortion groups aren’t sitting idle.

“If Trump wins, there’s much to prepare in those weeks before inauguration,” she said, noting strategies like pill stockpiling, overseas sourcing and community support networks.

Pro-abortion organisations also are launching the “You Have Options” campaign to make sure women have access to critical resources, no matter who wins on November 5. — AFP