What Happens to Abortion Access in the Next Trump Administration?

From enforcing the Comstock Act to reversing guidance on emergency care, there are multiple avenues for the Trump administration to dramatically limit access to abortion, even without a federal ban, legal experts told MedPage Today. However, whether the president-elect and his appointees plan to pursue a strong anti-abortion agenda remains to be seen.

After the Supreme Court overturned Roe v. Wade, ending constitutional protections to abortion, states began to pass “shield laws” to protect healthcare providers in Blue states who were treating patients from abortion ban states, explained Greer Donley, JD, of the University of Pittsburgh School of Law, during an online discussion hosted by the Brookings Institution last week.

Later iterations of these laws also sought to protect access to telemedicine abortions, which the FDA under the Biden administration made possible in 2021 by removing in-person dispensing requirements for the abortion pill mifepristone (Mifeprex).

Roughly 11,000 abortions per month have occurred through such channels, Donley said.

Enforcing the Comstock Act

The “small silver lining” these laws have afforded patients could easily vanish if the Trump administration enacts certain changes, Donley noted.

When it comes to restricting abortion access, David Cohen, JD, of the Drexel University Thomas R. Kline School of Law in Philadelphia, said that Trump could direct the Department of Justice to enforce the Comstock Act — an 1873 law that prohibits “obscene” material from being sent through the mail.

This could apply to not only mifepristone, but to “anything that can produce an abortion,” he said, adding that the results of such actions would be “catastrophic.”

“It’s not just pills, it’s not just telemedicine … even someone handing out pills in person has gotten the pills into their clinic in the mail,” Cohen explained. “That’s my number one concern.”

As Donley told MedPage Today, Trump’s chosen attorney general could also leverage the Comstock Act to prosecute virtual abortion providers, shield providers, and others.

Trump recently named Rep. Matt Gaetz (R-Fla.) to the position. To date, Gaetz has not commented on the Comstock Act, but earned an A+ rating from the anti-abortion advocacy group SBA Pro-Life America.

Trump has said he has no intention of enforcing the Comstock Act, but Cohen argued that whether he upholds that promise is essentially “a coin flip.”

Another measure Trump could take would be to have his FDA reverse the approval of mifepristone, or roll back flexibilities that made the drug accessible via telehealth, Cohen noted.

Redefining EMTALA Care

In 2022 guidance, the Biden administration sought to reaffirm Emergency Medical Treatment and Active Labor Act (EMTALA) protections, which require physicians to stabilize any patient that arrives at an emergency department. The administration stressed that, in its view, abortion is a form of stabilizing care.

But EMTALA runs counter to abortion bans in six states, which have no exceptions for the health of the mother — only the life of the mother. This could mean that women aren’t able to receive medically necessary care “unless they are on death’s door,” Donley said.

While federal law supersedes state law, cases intended to clarify EMTALA’s role in emergency abortion situations in Texas and Idaho are ongoing, she noted, adding that a Trump administration could rescind the Biden administration’s EMTALA guidance. Whether the political will exists to back such a “terrible idea” is uncertain, she said, “but the anti-abortion movement surprises me a lot.”

A Federal Abortion Ban

A national abortion ban is something both Cohen and Donley view as unlikely to pass.

While Republicans appear to have control of the House, the party’s margin is small, and there are likely enough Republicans and institutionalists in the Senate to oppose scrapping the filibuster, Cohen said. (The filibuster requires a 60-vote threshold to pass most legislation, although both parties have debated scrapping it to enact their separate abortion-related priorities.)

Donley agreed that the Trump administration would likely be more inclined to leverage the Comstock Act than to institute a federal ban, given “the filibuster problem.”

Since federal law trumps state law, Cohen pointed out that if abortion is, in essence, banned by the Comstock Act, then none of the state constitutional amendments and abortion-rights ballot measures matter.

The Wild Card: RFK Jr.

One new twist in any forecast of the abortion landscape is Robert F. Kennedy Jr., who was tapped by Trump to lead HHS last week. Kennedy has publicly spoken about supporting abortion through viability, Donley pointed out, with former Vice President Mike Pence calling him “the most pro-abortion Republican-appointed secretary of HHS in modern history.”

Cohen said that while he was not suggesting that Kennedy’s appointment was “good in any way for vaccines or the food supply … for abortion purposes, I would certainly rather it be RFK Jr. than a whole host of anti-abortion people [that Trump] could have put in that position,” including Roger Severino, JD, former director of the Office of Civil Rights during Trump’s first term and author of the HHS chapter in Project 2025.

Asked what President Biden and Vice President Harris could do to counteract potential future actions by the Trump administration on abortion, Cohen said filling the remaining judicial vacancies is critical.

There are tens of thousands, potentially hundreds of thousands, of cases in the lower courts, many of which deal with reproductive rights, and these are life-time appointments that cannot be undone by the next president, he said.

“Every opening that is not filled is a gift to Donald Trump and the right-wing anti-abortion movement,” he argued.

Kirsten Moore, director of the EMAA (Expanding Medication Abortion Access) Project, also noted that Biden’s FDA could add an indication for miscarriage management to the mifepristone label.

“I think it will complicate things for the opposition, because this is about helping women who are pregnant and wanted to be pregnant, but something went wrong,” she said.

With those sentiments in mind, one might question whether anti-abortion proponents would interfere with an FDA-approved drug, but “given what we’ve seen in Louisiana and now Texas” with mifepristone and misoprostol — both states passed laws to categorize the medications as controlled substances — “yes, they will do that,” Moore said.

“There are no guardrails. They will step over everything,” she added.

Cohen said the addition of a miscarriage indication for mifepristone from the FDA is a good idea, but typically would require a citizen petition from the manufacturer. In 2022, the American College of Obstetricians and Gynecologists submitted a citizen petition calling on the FDA to urge Danco, the maker of mifepristone, to request such an indication.

If the process hasn’t already started, it’s unlikely to be achieved before Trump takes office, he noted, and FDA approval of anything is reversible.

Dana Northcraft, JD, founding director of the Reproductive Health Initiative for Telehealth Equity and Solutions, stressed that abortion is a bipartisan issue, evidenced by recent state ballot measures. It’s important to stay levelheaded and recognize that no one knows what will happen under Trump, she said.

“We should not be responding to fear, and we should not be responding to threats, but actual actions,” Northcraft said. “And it really is the fear that is being staged by these threats that [anti-abortion proponents] are counting on to hold us back and we’re not going to hold back.”

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