Anti-abortion demonstrators listen to President Donald Trump speak at the 47th annual March for Life in Washington, D.C., January 24, 2020.
Olivier Daulieri | AFP | Getty Images
Voters in seven out of 10 states approved ballot measures this week to protect abortion rights, a hot-button issue that helped push 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 have warned, leaving the reproductive health of many women hanging in the balance.
Trump has been ambivalent about his stance on abortion, recently saying he would not support a federal ban and wanted to leave the issue to the states. But Trump and his appointees at federal agencies could restrict abortion at the federal level through methods that would not require Congress to pass new legislation.
“The more abortion restrictions we see over the next four years, the worse health outcomes will be,” said Katie O'Connor, director of federal abortion policy at the National Women's Law Center. “People are suffering and dying needlessly.”
Access to abortion in the United States has already been in flux over the past two years since the Supreme Court overturned Roe v. Wade and ended the federal constitutional right to the procedure — a decision that Trump has taken credit for since he reshaped the court. As of last year, more than 25 million women ages 15 to 44 lived in states where there were more restrictions on abortion than before the court's ruling in 2022, PBS reported.
Experts say further crackdowns on abortion by the Trump administration could put the health of many patients, especially those with low income or people of color, at risk.
“As long as we have a government that is not fully committed to providing abortion to everyone who seeks it, there will be chaos and confusion on the ground about what is legal and what is available,” O'Connor said. “This will contribute to the ongoing health care access crisis we are seeing with abortion.”
It is unclear what Trump's actions on the issue might look like. There is little public support for Congress to pass a nationwide abortion ban, according to a June poll by The Associated Press-NORC Center for Public Affairs Research. At least 70% of Americans oppose federal bans on abortion or bans on the procedure after six weeks.
If Trump decides to restrict access to the drug, experts say, that could include limiting the use of medical abortion, especially when it is administered through telehealth or delivered by mail.
Medications are the most common method used to end a pregnancy in the United States, accounting for 63% of all abortions in the United States last year, according to a March study by the Guttmacher Institute, a research organization that supports abortion access.
The Trump campaign did not immediately respond to a request for comment.
The decades-old Comstock Act
The Trump administration could sharply restrict or ban medical abortion by imposing an interpretation of the long-stalled Comstock Act, according to Julie Kay, co-founder and executive director of the Abortion Telemedicine Coalition.
The law, passed in 1873, makes it a federal crime to send or receive medications or other materials intended for abortion through the mail. It has not been widely applied for decades.
The National Women's Strike holds a protest marking the second anniversary of the Supreme Court's Dobbs v. Jackson decision, which overturned Roe v. Wade, outside the U.S. Supreme Court in Washington on Monday, June 24, 2024.
Bill Clark | Cq-roll Call, Inc. | Getty Images
The Trump administration could use this law to block the shipment and distribution of abortion pills and possibly 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 at the Washington Abortion Institute. Rutgers Center for American Women and Politics.
To implement it, Trump would have to appoint an anti-abortion US attorney general, which would require Senate approval.
The Biden administration maintains that the Comstock Act's provisions are outdated. Trump said in August that he had no plans to enforce the Comstock Act.
But anti-abortion advocates and people in Trump's inner circle, including his running mate, Vice President-elect J.D. Vance, are urging otherwise. Some former Trump advisers, writing in the 2025 Conservative Policy Blueprint Project, also support using the Comstock Act to restrict abortion pills. So does every major anti-abortion organization in the country.
O'Connor noted that there would likely be legal opposition to any effort to implement it.
The case could end up in the Supreme Court, whose justices have expressed openness to the idea that the Comstock Act might ban abortion. Earlier this year, Justices Samuel Alito and Clarence Thomas repeatedly cited the Comstock Act during oral arguments in a case involving medical abortion.
Appoint anti-abortion actors to key agency roles
Trump could also appoint anti-abortion leaders to take control of key federal agencies that can use executive power to severely limit or ban the procedure in the United States, including the Department of Health and Human Services, the Food and Drug Administration, and the Justice Department.
“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 the Guttmacher Institute for Policy, referring to the Supreme Court’s decision in Dobbs v. Dobbs. Women's Health of Jackson, which overturned Roe v. Wade.
Trump and his political appointees at the Food and Drug Administration could direct that agency to severely restrict or potentially eliminate access to mifepristone, one of two drugs used in the popular medical abortion regimen.
Anti-abortion doctors clashed with the Food and Drug Administration 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 rejected a challenge against mifepristone and sided with the Biden administration, meaning the commonly used drug could remain widely available.
Mifepristone and misoprostol pills are pictured on Wednesday, October 3, 2018, in Skokie, Illinois.
Erin Holly | Chicago Tribune | Tribune News Service | Getty Images
But FDA appointees may push to undo some changes made from 2016 to 2021 that expanded access to mifepristone. This could include reimposing requirements that require mifepristone to be dispensed in person, which would effectively prevent the ability to access birth control pills via telehealth.
Telehealth has become an increasingly popular way to get abortion bills, accounting for nearly 1 in 5 of them during the final months of 2023, according to a research project published by Planned Parenthood in May.
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 are likely to see more people in states where abortion is prohibited having to travel, more delays in getting care and potentially more of them actually being denied that care because of the difficulties of having the procedure in person,” she said.
It's also possible that new FDA leaders will try a more extreme approach: revoke approval of mifepristone altogether. Experts said either strategy would ignore important scientific research proving the safe and effective use of mifepristone in the United States.
Trump vaguely suggested in August that he would not rule out directing the FDA to revoke access to mifepristone. Just days later, Vance attempted to retract those statements.
Trump's comments appear to represent a shift from his position in June, when the former president said during a CNN debate that he “will not block” access to mifepristone.
Reviving the old rules and eliminating Biden's rules
At the very least, Trump could reinstate 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.
Rep. Lois Frankel, D-Fla., left, points out states with restricted reproductive rights as Rep. Joyce Beatty, D-Ohio, and Rep. Joe Neguse, D-Colorado, hold the map during a news conference on reproductive rights at the U.S. Capitol On Wednesday, May 8, 2024.
Bill Clark | Cq-roll Call, Inc. | Getty Images
Trump could reinstate the so-called domestic gag rule, which he implemented in 2019 and which the Biden administration rolled back in 2021.
The rule prohibits providers who are part of a federally funded Title X family program from referring patients for abortion care or providing counseling that includes abortion information. Title X is a decades-old program that provides family planning and preventive health services to patients, especially low-income individuals.
Guttmacher's Baden said the rule “decimated” Title Those clinics are “still recovering from this,” she said.
“I don't see any reason to assume that he won't reinstate this rule in the first 100 days,” Baden said.
The Trump administration could also quickly rescind some of Biden's executive orders, memos and other efforts aimed at protecting and expanding access to reproductive health services, according to Baden.
