Trump doesn’t need Congress to make abortion effectively unavailable

KFF Health NewsNov 27 2024

On the campaign trail, Donald Trump tried mightily to reassure abortion rights supporters, vowing he would not sign into law a nationwide abortion ban even if Congress sent him one.

But once he returns to the White House in January, Trump can make abortions difficult — or illegal —across the United States without Congress taking action at all.

The president-elect will have a variety of tools to restrict reproductive rights in general and abortion rights in particular, both directly from 1600 Pennsylvania Ave. and from the executive agencies he'll oversee. They include strategies he used during his first term, but also new ones that emerged in the wake of the Supreme Court's overturn of Roe v. Wade in 2022.

The Trump transition team did not respond to a request for comment on this topic.

By far the most sweeping thing Trump could do without Congress would be to order the Justice Department to enforce the Comstock Act, an 1873 anti-vice law that bars the mailing of "obscene matter and articles used to produce abortion."

While Roe was in effect, the law was presumed unconstitutional, but many legal scholars say it could be resurrected. "And it is so broad that it would ban abortion nationwide from the beginning of a pregnancy without exception. Procedural abortion, pills, everything," Greer Donley, an associate professor and abortion policy researcher at the University of Pittsburgh Law School, said on KFF Health News' "What the Health?" podcast early this year.

Even if he does not turn to Comstock, Trump is expected to quickly reimpose restrictions embraced by every GOP president for the past four decades. When Trump took office in 2017, he reinstituted the "Mexico City Policy" (also known as the "global gag rule"), a Ronald Reagan-era rule that banned U.S. aid to international organizations that support abortion rights. He also pulled U.S. funding for the United Nations Population Fund. Both actions were undone when President Joe Biden took office in 2021.

Those aren't the only policies Trump could resurrect. Others that Trump imposed and Biden overturned include:

• Barring providers who perform abortions and entities that provide referrals for abortion (such as Planned Parenthood) from the federal family planning program, Title X. The Trump administration imposed the rules in 2019; Biden formally overturned them in 2021.
• Banning the use of human fetal tissue in research funded by the National Institutes of Health. The Trump administration issued guidance barring the practice in 2019; the Biden administration overturned it in 2021.
• Requiring health plans under the Affordable Care Act to collect separate premiums if they offer coverage for abortion. The 2019 Trump administration regulation was overturned by Biden officials in 2021.
• Allowing health providers to refuse to offer any service that violates their conscience. The 2019 Trump administration regulation — a revision of one originally implemented by President George W. Bush — had already been blocked by several appeals courts before being rescinded and rewritten by the Biden administration. The new, narrower rule was issued in January.

Anti-abortion groups say those changes are the minimum they expect. "The commonsense policies of President Trump's first term become the baseline for the second, along with reversing Biden-Harris administration's unprecedented violation of longstanding federal laws," Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said in a statement to KFF Health News.

Dannenfelser was referring to the expectation that Trump will overturn actions that Biden took toward protecting abortion rights after the Supreme Court's decision. Some included:

• Providing that members of the military and their dependents who live in states with abortion bans be permitted to take leave and travel to other states for reproductive health care.
• Allowing VA medical facilities to provide abortion counseling and, in limited circumstances, abortions to veterans and VA beneficiaries, regardless of the laws in the state where the facility is located.
• Expanding the availability of the abortion pill mifepristone.
• Clarifying that the Emergency Medical Treatment and Active Labor Act of 1986 requires hospitals to provide abortions to women with pregnancy complications that threaten their health, not just their life regardless of state law.

Even easier than formal changes of policy, though, Trump could simply order the Justice Department to drop several cases being heard in federal court in which the federal government is effectively arguing to preserve abortion rights. Those cases include:

• FDA v. The Alliance for Hippocratic Medicine. This case out of Texas challenges the FDA's approval of the abortion pill mifepristone. The Supreme Court in June ruled that the original plaintiffs lacked standing to sue, but attorneys general in three states (Missouri, Idaho, and Kansas) have stepped in as plaintiffs. The case has been revived at the U.S. District Court for the Northern District of Texas.
• Texas v. Becerra. In this case, the state of Texas is suing the Department of Health and Human Services, charging that the Biden administration's interpretation of a law requiring emergency abortions to protect the health of the pregnant woman oversteps its authority. The Supreme Court denied a petition to hear the case in October, but that left the possibility that the court would have to step in later — depending on the outcome of a similar case from Idaho that the justices sent back to the Court of Appeals.

Whether Trump will take any or all of these actions is anyone's guess. Whether he can take these actions, however, is unquestioned.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.