This week, the United States elected Donald Trump to be the country’s 47th president. Despite Trump previously bragging about appointing some of the Supreme Court judges that overturned Roe v. Wade via the Dobbs decision, which led many states nationwide to restrict abortion access, many people who voted for him also voted to expand access to abortion in their respective states. It might be a bit confusing when taking a closer look at this peculiar detail, as Harris made expanding access to abortion a key part of her platform. Trump did not.
“Most of his base believes that Trump will not pass more restrictions on abortion,” Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center Action Fund, said in a press conference. “That is what they voted for.”
Trump has indeed said he doesn’t support a nationwide abortion ban. At the same time, during the presidential debate with Harris, he declined to say “yes” or “no” when asked whether he'd veto such a ban. Later, on his social media platform, he said that he would veto a federal abortion ban if legislation reached his desk. But Project 2025, which was developed to replace the traditional policy arm for Trump's presidential campaign by the Heritage Foundation, says otherwise.
“There's still every reason to believe that Trump and those he surrounds himself with will attempt to restrict access to abortion and other reproductive health care,” Borchelt said. “It is all laid out in Project 2025, but people are going to be watching.”
Exploring the reasoning why some Trump voters voted to expand access to abortion will be further dissected in the weeks to come, but another question remains: Will the states that just voted to protect access to abortion have protection in a Trump presidency? Or are these enshrined amendments in state constitutions a sense of false security?
“This one's pretty easy: federal law — all federal law — trumps all state law,” David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon.
In the wake of the presidential election news, the Guttmacher Institute outlined 10 ways the Trump presidency could restrict access to reproductive rights. When it comes to blocking abortion access, it likely wouldn’t happen through an explicit nationwide abortion ban. Instead, the Trump-Vance administration could leverage the Comstock Act, an 1873 anti-vice law that bans obscene articles being used for abortion from being mailed. As explained by KFF, a literal interpretation of this could mean that material to produce all abortions would be prohibited from being mailed, which could affect other medical care, like miscarriage management, and stop medication abortion from being mailed.
“State constitutions provide no protection whatsoever against Comstock Act, against the Trump national abortion ban, against fetal personhood within the 14th Amendment," Cohen explained. "Which is why there were many of us who were trying to get the word out before the election, that if you really do care about reproductive freedom and vote accordingly in state ballot initiatives, there's only one candidate to vote for.”
Cohen said everyone who voted to expand access to abortion via state ballot initiatives and for Trump “nullified their vote on the abortion amendments.”
The U.S. Supreme Court has already signaled that it has eyes on such an interpretation of the Comstock Act. During arguments in FDA v. Alliance for Hippocratic Medicine, a case that would have restricted nationwide access to mifepristone, conservative Supreme Court Justices Samuel Alito and Clarence Thomas both brought up the Comstock Act. In questioning, Thomas said to a lawyer for Danco Laboratories, the manufacturer of mifepristone, that the Comstock Act is "fairly broad, and it specifically covers drugs such as yours."
“History has already shown that the election of Donald Trump as President of the United States will have devastating consequences for sexual and reproductive health and rights—and far beyond,” said Destiny Lopez, acting co-CEO of Guttmacher Institute, said in a statement. “Should his administration attempt to impose the dangerous Project 2025 agenda, it will unleash an all-out assault on rights and freedoms, using every lever of government — from attacks on abortion and contraception in the United States to reimposing the global gag rule and gutting U.S. international family planning aid.”
In the Republican Party’s “Make America Great Again” policy platform released last summer, it stated that the 14th Amendment “guarantees that no person can be denied life or liberty without due process and that the states are, therefore, free to pass laws protecting those rights.” As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, previously told Salon, this statement signals “that embryos and fetuses are persons under the 14th Amendment, which is simply not true.”
“If that were the case, if embryos and fetuses had constitutional rights under the due process clause, states would be required to ban abortion,” she told Salon. This would mean states that have already enshrined abortion rights into their state constitutions would still have to pass abortion bans.
Seema Mohapatra, a law professor at the SMU Dedman School of Law, told Salon, that when state law and federal law are in conflict, to expect this to play out in litigation in the courts, arguing it might not be such a clear-cut answer on how much protection state amendments can provide.
“There’s going to be a conflict between federal and state law,” Mohapatra said. “We're going to have to wait and see how the court interprets it.”
But Cohen pointed to lessons from the Civil Rights Era, when "all these segregated states pointed to their state law and state Constitution to justify continuing to segregate,” Cohen said. “But ultimately the federal law and federal Constitution prevail, because that's how it works.”
