Former President Donald Trump’s election has raised fears on the left that the incoming president will restrict abortion, even as he’s said he wants to leave it up to the states, and while it’s still unclear if Congress would support a national ban, Trump would have several options to outlaw abortion without even needing lawmakers’ approval.
President Donald Trump speaks during the annual "March for Life" rally on Jan. 24, 2020, in ... [+]
Trump has publicly said since April that he wants to leave abortion up to the states rather than enact a federal ban, but both Democrats and his own supporters haven’t fully believed him, with Russell Vought, a co-author of the conservative policy agenda Project 2025, telling undercover journalists from the Centre for Climate Reporting he’s “never seen [Trump] stand in the way of a pro-life initiative that actually is real” (Trump has sought to distance himself from Project 2025, which was written partly by his former staff).
National Ban: While it still remains to be seen which party will take control of the House, at least the Senate will be in Republican hands, and a GOP-controlled Congress could try to pass a national abortion ban—though it remains to be seen if it would pass and whether Trump would sign it into law, as he claimed on the campaign trail he would veto such legislation.
Comstock Act: Project 2025 and Trump’s running mate Sen. JD Vance, R-Ohio, have supported enforcing the Comstock Act, a long-dormant 19th century law that prohibits the mailing of any supplies related to abortion, which could be used to just ban mailing abortion pills, or functionally ban abortion altogether by blocking any medical supplies or other equipment related to it from being shipped.
Trump made his first comments about the Comstock Act in August, telling CBS News when asked if he’d enforce the law, “We will be discussing specifics of it, but generally speaking no … I would not do that.”
Mifepristone: Trump could also appoint officials who would revoke the Food and Drug Administration’s approval for mifepristone, one of the two drugs used in a medication abortion—a proposal also outlined in Project 2025—after Republicans have so far failed to restrict the drug through the courts.
After previously suggesting he could be open to restricting mifepristone—saying during a press conference, “There are many things on a humane basis that you can do”—Trump told CBS News the drug is “going to be available, and it is now,” saying the Supreme Court has ruled to “keep [the drug’s approval] going the way it is” (the court actually issued a more narrow ruling saying challengers didn’t have standing to bring a case).
Fetal Personhood: Another way to ban abortion is by adopting the legal theory of “fetal personhood,” which gives constitutional rights to fetuses and thus requires that abortion be banned by extension, because if fetuses have rights, abortion would amount to murder.
Trump has not publicly commented on fetal personhood, but the Republican Party acknowledged the theory in its official party platform, which the Trump campaign has said reflects the ex-president’s views.
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Trump won the presidential election on Tuesday even as voters continued to signal they are largely in support of abortion rights, suggesting the ex-president’s claims he wants to leave the procedure up to the states landed with voters despite Democrats’ claims he would go further. Vice President Kamala Harris’ campaign and Democratic allies repeatedly warned ahead of the election that Trump will ban abortion if elected, pointing to Project 2025’s 900-page policy agenda spearheaded by the Heritage Foundation, which lays out a proposed overhaul of the executive branch that includes abortion through the FDA and Comstock Act—even as Trump disavowed Project 2025. Voters passed ballot measures in favor of abortion rights in seven states in the general election, though a measure failed in South Dakota and Nebraska instead favored a competing measure that banned abortion after 12 weeks. Florida’s measure also failed to meet the 60% threshold needed to pass, but was still supported by a 57% majority of voters. Polling by the Associated Press found that between 19% and 35% of voters backing abortion rights measures in the states where they were on the ballot also voted for Trump, suggesting they believed he would not ban abortion if elected.
Trump reiterated his opposition to imposing a national abortion ban in an August interview on “Fox & Friends” after Democrats claimed at their national convention that he’d restrict abortion. “They say in the convention, I want a federal ban,” Trump said, as quoted by CNN. “I would never, and they know I’ve said it, there will not be a federal ban. This is now back in the states where it belongs.”
What loopholes Trump could explore. In his comments to the undercover reporters, which were recorded secretly and then released online, Vought also suggested Trump could take smaller steps like defunding Planned Parenthood, telling the Centre for Climate Reporting journalists he thinks Trump “has actually come up with a strategy that works” in saying he’ll leaving the issue up to the states, “so long as you are giving people like me in the government the ability to” enact restrictions.
Trump’s comments disavowing the Comstock Act and saying he’ll uphold mifepristone have drawn criticism from his anti-abortion supporters who want him to ban the procedure, Politico reported, who claim the ex-president is being “cowardly” and threatens losing support from his base. It remains to be seen if Trump will now cave to those supporters and take actions against abortion now that he’s been elected.
74%. That’s the share of women ages 18-49 who disagree with Trump’s view that abortion should be left up to the states, according to a Kaiser Family Foundation poll released in August. While support for keeping abortion legal fell largely on party lines, respondents from both parties opposed Trump’s position, with 86% of Democratic women and 53% of Republicans disapproving of leaving the issue to the states.
The Supreme Court overturned Roe v. Wade and the federal right to an abortion in June 2022, setting off a wave of state-level bans that have broadly benefited Democrats at the ballot box. With polling showing a majority of Americans support abortion remaining at least mostly legal, Democrats made abortion into a key electoral issue, resulting in a series of wins for the left in elections where abortion has played a central role. While eager to enact abortion bans, Republicans have largely shied away from denouncing abortion on the campaign trail as a result, with a number of GOP candidates even editing their websites or toning down previous stances on abortion in order to not seem too extreme. Trump has a history of flip-flopping on his abortion views, and has pushed leaving abortion to the states even as he’s also publicly boasted about playing a key role in the reversal of Roe v. Wade by appointing three conservative justices to the bench. The ex-president floated a national 15-week abortion ban before coming out in favor of leaving the issue to the states, despite pressure from anti-abortion advocates to take a harsher stance.