Abortion rights initiatives were on the ballot in 10 states on Tuesday, and won in seven of them. One of the losers was prop 4, Florida’s abortion rights measure, which received a whopping 57% of the vote but failed to meet the state’s unusually high 60% threshold, meaning that the state’s six-week ban will remain in place. Asked about the Florida abortion rights proposition ahead of the election, Trump said that when he went to cast his ballot near Palm Beach, he would vote against it.
It has always been a little hard to believe that Donald Trump personally hates abortion, even if it is abundantly clear how little he thinks of women. Trump, after all, has claimed to have numerous conflicting positions on abortion rights throughout his life. And his brand of masculinity is boorish, vulgar, and above all, sexually entitled – far from the priggish, repressed moralism of more classical anti-abortion figures like Mike Pence.
Maybe this is why, though Trump appointed three of the six justices who overturned Roe v Wade and has boasted about his role in ending the right to an abortion, many voters seem to not quite believe that he will continue to suppress the procedure further in his coming second term. Abortion rights measures won in several states that Trump carried on Tuesday – including Arizona, Nevada, Montana and Missouri, all states that Trump won. A lot of people, it seems, voted for abortion rights in their own states, and then also voted for Donald Trump – who, make no mistake, will move to restrict abortion access nationwide when he returns to the White House next year.
Trump, of course, has insisted that this will not happen – which on its own might be a decent indication that it will. But there is evidence that the new Trump administration will pursue a broad agenda restricting women’s rights, including nationwide attacks on abortion access, even beyond that offered by Trump’s habitual pattern of self-serving dishonesty.
Republicans have won control of the Senate and are likely to capture the House of Representatives; if they do, they may well advance legislation to ban abortion nationwide. (And to pass it: there is no reason to believe that a Republican governing trifecta will preserve the filibuster.) A bill like this would probably not be termed a “ban” by its sponsors: Republicans, wary of the public disapproval of abortion bans, have started calling their new abortion restrictions by chillingly imprecise euphemisms, such as “standard” or even “protection”. But the effect of the laws are the same: to outlaw abortions. This could take the form of a gestational limit, or of the federal recognition of fetal personhood. Trump may well sign such legislation into law, eliminating abortion rights even in Democratic-controlled states and those that have recently passed abortion rights referendums with the stroke of a pen.
But Republicans do not even need to manage to pass a bill through Congress to make abortion much more difficult to get. Trump can simply restrict abortion through federal agencies. He will soon be in control of the FDA, for example, which regulates the abortion drug mifepristone, part of a two-drug regimen that now accounts for most abortions in the United States. Mifepristone is a safe, effective drug that allows abortions to be performed in the privacy of patients’ homes, with little of the expensive clinical involvement and overhead that makes surgical abortions more time-intensive and costly for providers and patients alike.
Naturally, the anti-abortion movement hates it. Since Dobbs, a coalition of anti-choice groups and Republican attorneys general have been suing the FDA, seeking to overturn the agency’s 2000 approval of the drug. Trump will be able to rescind access to it almost immediately, taking the drug off the legal US market. If he gives the anti-choice movement what they want, he may also direct the FDA to revoke approval of the most reliable forms of female-controlled contraception, like Plan B, IUDs, and certain birth control pills, which the anti-choice movement falsely claims cause abortions.
Trump is likely to also revive enforcement of the Comstock Act, a long-dormant 1873 law that bans the shipment of anything that could be used to induce an abortion through the US mail. The Comstock Act has not been enforced in decades – parts of it were repealed in the 20th century, and other sections were long rendered moot by supreme court precedents like Roe and Casey – and would have the effect of criminalizing much abortion care. Since Dobbs, several Democratic-controlled states have passed what are called shield laws, which protect doctors who mail abortion drugs from states where the procedure is legal into states that have bans. This mail-order abortion operation is, for now, technically legal: it has preserved women’s independence and dignity and no doubt saved thousands of lives.
But when the Comstock Act is enforced, much of this sector of abortion provision will disappear. Combined with the revocation of FDA approval for mifepristone, this will inevitably mean that many women seeking abortions will turn to black market surgical abortion providers, and suffer the risks attendant to such procedures. A return to pre-Roe levels of abortion ban-related mortality could probably follow.
Trump is also likely to reverse the Biden administration’s guidance on Emtala, the Emergency Medical Treatment and Active Labor Act, a federal law that requires emergency rooms to provide stabilizing care to all patients facing health crises. Emtala has been the subject of much post-Dobbs litigation, as states like Idaho and Texas have sought to argue that their abortion bans supersede the federal law, thus requiring hospitals in their states to withhold emergency abortions from women in medical emergencies who will suffer or die without them. The US supreme court declined to decide the issue last summer; a Trump administration may help to resolve it for them.
This is all just what Trump could do on his own in his first years back in office. But the impact of a Trump term on American women’s access to abortion will be felt long after Trump himself is no longer with us. Trump will probably appoint at least two supreme court justices to lifetime seats in his coming term; he will also fill an unknown number of vacancies on the lower federal courts, whose judges also serve for life. These judges are all likely to be anti-abortion zealots, as are the federal bureaucrats Trump will bring in to staff agencies such as the FDA, CDC and Department of Health and Human Services.
We are already living in an era when abortion access is restricted more than it has been in decades. Now, it will be restricted more. We may well never have as much reproductive freedom as we do now ever again.
American women are well advised to prepare for this, to not wait for the Trump administration to restrict the tools they use to control their own bodies. Sterilization and long-acting birth control remain accessible, for now; women who want these should move quickly to get them. Plan B and abortion pills can both be purchased ahead of time and kept on hand in the privacy of a medicine cabinet; such purchases may provide security and peace of mind to those staring down the barrel of another Trump term. Abortion, as we know, will never be eliminated; it can only be less safe, and less dignified. But there are few things as strong as women’s determination to control their own lives. That determination is certainly stronger than the law.
Moira Donegan is a Guardian US columnist
