A Trump Re-Election Means Major National Abortion Restrictions

A Trump reelection and GOP control of Congress are an existential threat to abortion rights nationwide.

Left: Republican presidential candidate, former U.S. President Donald Trump speaks during a Fox News town hall. Photo by Justin Sullivan/Getty Images. Right: Speaker of the House Mike Johnson (R-LA) holds a news conference following a caucus meeting at the U.S. Capitol Visitors Center. Photo by Chip Somodevilla/Getty Images.

When the Supreme Court decided Dobbs in 2022, it was supposed to settle the matter. Abortion, the majority opinion proclaimed, was now a question for the states. The federal government, especially the federal courts, should stay out of it. But reality crashed into that notion pretty quickly as it became clear that America would divide into abortion ban states and abortion rights states. 

Among the former, a number of states had “sleeper” statutes on the books—decades-old laws that banned abortion in fairly draconian ways—which sprang back into place once Roe v. Wade fell. Other states, governed by Republican supermajorities, rushed to pass total bans, bans with very limited exceptions, or six-week bans before most women are even aware they are pregnant.

This presented a big problem for the GOP: furious women voters. As millions began to register their protests—and register to vote in record numbers—anti-abortion forces began losing statewide referenda, even in the red bastions of Kansas, Montana, and Ohio. And in critical battleground states, such as Michigan, Wisconsin and Pennsylvania, abortion rights figured highly in high-profile Republican defeats in the 2022 midterms as well as 2023 special elections.

Through all of this, however, voters in deeply blue abortion rights states such as New York and California seemed less concerned about the danger. After all, Democratic strongholds have traditionally protected abortion, and as a result, the issue didn’t translate into high turnout in 2022 in these states. These states underperformed for Democrats, and that was enough to hand the House narrowly to the GOP.

But now, talk of a national abortion ban may dramatically change how voters feel, even in the “safe” blue states. There are currently plans among anti-abortion activists to take the next logical step after Dobbs and to implement a national abortion ban—or as close to it as they can get.

As the New York Times reported, Donald Trump has told aides he is privately in favor of a 16-week ban, a sign he is feeling pressure from social conservatives to do something about abortions that are still legal and available in the blue states. Trump’s shift adds weight to efforts by GOP leaders like Sen. Lindsey Graham to find a “middle ground” that they could then sell to voters. But it also risks motivating women voters to make their way to the polls, especially in swing district House races in New York and California.

But is a national abortion ban even a possibility? Couldn’t Democrats in Congress kill any such effort right away, even if a re-elected President Trump is willing to sign such a law?

In this piece, I’ll explore why we need to take the threat of a national abortion ban seriously, and why it is now an issue for every voter in every state. Specifically, I’ll explore how Republicans could get around Democratic legislative roadblocks and force such a ban—or in the alternative, an effective ban on most abortions—through at the national level.

Chipping away at the national right to abortion, Texas-style

We don’t need to look far for an example of a government that managed to essentially eliminate abortion rights and abortion access, even while Roe v. Wade still guaranteed abortion as a constitutional right. The state of Texas had been chipping away at it for many years before the Dobbs decision came down, and it should serve as a warning for how extremists might proceed in Washington.

The ACLU compiled a timeline of all the ways Texas has eroded the right to abortion in the state over the last 20+ years. I want to highlight just a few of these as cautionary examples of what anti-abortion extremists could try to implement nationally. You’ll see how the restrictions begin at the edges and work their way into the heart of abortion rights and access.

First, in 2005, Texas made it harder for young women, who are already generally more vulnerable and have fewer options and resources, to obtain abortions by enacting parental consent laws for anyone under the age of 18.

Six years later, in 2011, it forced all women seeking abortions to receive a sonogram at least 24 hours before any abortion. This was a form of psychological torture; the law required doctors to show the sonogram to the woman, make the fetal heartbeat audible, and verbally explain the results of the test.

In 2013, Texas began adding all kinds of irrelevant requirements for abortion clinics. For example, doctors had to have “admitting privileges” at a hospital within 30 miles of their abortion clinic. And all facilities had to meet the standards of mini-hospital surgical facilities, even if all they were providing was abortion pills. These two requirements were struck down by the Supreme Court, but this current Court would probably give them a pass were they enacted today on a national level.

In 2017, Texas banned a common and safe procedure for second-trimester abortions. Again, the Court back then struck it down at the time as an undue burden on a constitutional right, but such a ban today would probably pass legal muster.

In 2019, Texas prevented all government entities from entering into any partnership or provide any assistance to clinics that are even affiliated with abortion providers. This cut off vital government aid to lower-cost clinics in the state unless they ended all affiliations with any abortion providers.

And in 2021, Texas passed the infamous S.B. 8, which authorized private citizens to sue to enforce the then-unconstitutional state ban on abortion and paid $10K bounties for each successful suit. The U.S. Supreme Court let this law stand while it considered its legality.

From this horrific list, it’s not hard to imagine how a federal government in the hands of extremists might use a similar playbook. While an outright abortion ban would need to overcome a Senate filibuster, and thus is unlikely to pass, there are plenty of opportunities for an extremist House to add provisions to budget bills that strip away federal government funding from clinics who even associate with abortion providers, as just one example.

An extremist administration could also enact regulations similar to those in Texas that were struck down, e.g. requiring doctors to have admitting privileges at a hospital within X many miles, upping the federal standards for abortion clinics to the point that many would have to shut down, or banning certain types of common procedures outright. Before, such regulations could be challenged as undue burdens upon an established constitutional right, but going forward plaintiffs would have no such protected right to point to.

By the time Texas got done encroaching upon abortion rights and access, the procedure effectively was blocked within the state. That all happened before Dobbs, and there’s no reason to think a determined extremist federal government wouldn’t achieve the same.

Ominous plans already in the works

The New York Times published a disturbing report on February 17 of this year detailing the quiet, behind-the-scenes work that anti-abortion extremists are undertaking in preparation for a possible win by Donald Trump. 

Two of the plans leaped out at me as both highly impactful and possibly implementable.

The first concerned the rescission of approval of abortion pills at the F.D.A. Currently, the majority of women in the U.S. obtain abortions through medication, including use of the popular drug mifepristone. Far-right extremists already took direct aim at this drug by challenging the FDA’s approval of it decades ago. To advance their case, they ginned up a group of doctor plaintiffs in Amarillo, Texas, and then filed their case before quite possibly the most extreme judge in the U.S., Judge Matthew Kacsmaryk, the only federal judge in that Texas district. He ruled, predictably, that the FDA exceeded its authority in allowing the drug to be used widely.

The case is on appeal and will go before the Supreme Court later this year. The justices are likely to keep the drug legal, at least for now, but this won’t end the fight. Extremists have signaled their intentions clearly, and if they cannot defeat the FDA in the courtroom, then they hope to reshape it entirely once Trump is in power.

The second plan that has the attention of abortion rights activists is the defunding of Planned Parenthood, which currently receives hundreds of millions in federal dollars. As the Times piece noted,

Such an action against Planned Parenthood would cripple the nation’s largest provider of women’s health care, which is already struggling to provide abortions in the post-Roe era.

There are already people close to Trump who are positioned to lead this charge. For example, Russell T. Vought was a former senior official in the Trump administration who ran the Office of Management and Budget and was able to successfully block funds for Planned Parenthood in the first Trump administration. Vought remains a close advisor to Trump and leads a policy group that helped lead the legal fight to do away with mifepristone.

And again, without the legal barrier that Roe used to represent against the most extreme anti-abortion regulations, extremists would be emboldened to use the power of federal regulators and federal money to severely curtail the most common forms of abortion, including, especially, medication abortions.

Enforcing the Comstock Act

Some anti-choice extremists also believe they have a legal “nuclear weapon” that could end nearly all abortions in America, contained in something called the Comstock Act.

The Comstock Act was an “anti-vice” law passed over 150 years ago in 1873. It prohibited the use of the mail to send contraceptives or any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.

Over the decades, Congress and the courts have limited the Comstock Act so that it only applied to items specifically designed for abortions. And Roe pretty much rendered the Comstock Act obsolete for the past 50 years.

But now, like one of those draconian state sleeper laws, the Comstock Act is being talked about as a possible federal law that could spring back to life and undo easier access to abortion medication by specifically outlawing the sending of mifepristone through the mail. In fact, Judge Kacsmaryk ruled that the Comstock Act was still good law after Dobbs overruled Roe and that therefore the mailing of mifepristone is prohibited by law.

That case is on appeal, as mentioned earlier, but the idea has caught the imagination of extremists. After all, if the law is still good, then in theory it would take a new law, or a ruling from the Supreme Court, saying that the Comstock Act was not still in force and effect. And getting a new law through Congress would be just as hard as getting a new national abortion ban through—which is why it’s so difficult to codify the protections of Roe so long as the Senate filibuster rule remains in place.

Anti-abortion activists have taken to hiding their intentions around reviving the Comstock Act. They now commonly refer to it only by its statute number, 18 U.S.C. 1461 and 1462, likely because they are afraid voters would be spooked by the idea that it could come back into play after 150 years and be upheld by this extremist Supreme Court.

Here’s a disturbing prospect: An emboldened second Trump Administration, closely tied or even run by fundamentalist Christian extremists, could decide to prosecute companies under the Comstock Act. That would have the same chilling effect as Texas’s S.B. 8 by making it not economically viable for companies to continue to provide access to abortion medication. 

If this sounds far-fetched, it’s already starting to happen. Twenty different attorneys general from red states issued a warning to CVS and Walgreens that they would face legal action if they continued to sell the abortion pill. Walgreens caved to the political pressure and agreed not to begin sales of the pill in those 20 states. That kind of pressure could become a national campaign should a Trump Justice Department decide to join them.

This underscores the need to sound the alarm now about what Trump’s allies have planned when it comes to abortion restrictions and abortion bans, should Trump and the Republicans retake power. Voters in “safe” blue states need to understand that abortion rights are in danger nationally, with national bans looming.

It is vitally important not only to keep Trump from office and away from the power to change federal regulations and enforce 150-year-old laws, but also to prevent extremists from retaking the House of Representatives, where the battle for the majority runs straight through places like the suburbs outside of New York City and in the inland counties of California.

Abortion rights are without question a national issue now, with national consequences for all. And it must be top of mind for all voters come November.