What’s at Stake for Abortion Rights in Trump’s Second Term

The anti-abortion movement’s crown jewel during Donald Trump’s first term in office was the appointment of the three conservative Supreme Court justices who went on to end the constitutional right to abortion. Their work, however, is far from over: Starting on January 20, abortion opponents will have another shot at implementing their agenda as the self-proclaimed “most pro-life president” in history returns to the White House with considerably fewer guardrails in place.

How much more damage could the incoming Trump administration inflict on abortion access and reproductive rights nationwide? A lot, according to the half-dozen advocates I spoke with. While millions of Americans have voted post-Dobbs to expand or restore abortion rights through ballot measures in their home states, these protections could be moot in the face of the federal actions proposed in Project 2025, the far-right transition plan created by dozens of Trump administration alumni. Below, abortion-rights experts weigh in on what’s keeping them up at night ahead of Trump’s second term.

A national abortion ban

The Trump campaign has insisted that the president-elect won’t sign a federal abortion ban into law, even if Republicans achieve a trifecta in Washington. (The party won a majority in the Senate, and it’s increasingly looking like it’ll control the House too.) But as I’ve written before, Trump’s promise is little more than a rhetorical trick. “There is always the possibility of a national ban,” says Brittany Fonteno, president of the National Abortion Federation (NAF). “J.D. Vance has been very forthcoming about it, and he uses different language; he refers to it as a ‘national standard.’ But a ban is a ban. You can dress it up in flowery and different language, but that is what it is, and it will keep people from getting the care they need.”

Republicans would still face one obstacle before enacting any sort of federal ban: Unless their Senate majority nukes the filibuster, that legislation would require 60 votes to pass. Florida senator Marco Rubio recently told The New Yorker, “I don’t think the Senate is going to be in a position to work on bills that you can’t get 60 votes on, much less have a president sign.”

The Comstock Act

The incoming administration can still effectively restrict abortion nationwide without Congress’s approval. Experts agree that Trump could direct federal agencies to enforce the Comstock Act, an 1873 anti-obscenity law, and prosecute people who mail abortion pills and other tools used to terminate pregnancies.

“Comstock is really the sleeper threat that would have a huge impact,” says Fonteno. “It is a way to do a national ban on abortion through a back door. Congress doesn’t have to act, and Trump could wash his hands clean. He can say that he didn’t really do a national ban, that they were just in a position where they have to enforce this law that is on the books.”

Attacks on abortion-pill access

Post-Roe, medication abortion has become the most common method to terminate a pregnancy in the U.S. The availability of the drugs has also driven an increase in self-managed abortions taking place outside the formal health-care system, allowing patients who live in a state that banned the procedure to terminate their pregnancies and making the pills a target for the anti-abortion movement. If the legal challenge to the Food and Drug Administration’s approval of mifepristone, the first of the two pills used in the regimen, makes its way back to the Supreme Court — an increasingly likely scenario — it’s doubtful that the Trump administration will defend access to the medication, as President Biden did.

If Trump follows proposals from Project 2025, he can direct the FDA to reverse its two-decade-old approval of mifepristone. He could also tell the agency to reinstate medically unnecessary restrictions on the drug that would drastically reduce access, including requiring that mifepristone be administered in person by a physician, banning it from being shipped by mail, and limiting its use to up to seven weeks of pregnancy.

Sage Carson, a spokesperson for the reproductive-justice legal nonprofit If/When/How, noted the administration could also target both mifepristone and misoprostol, the second drug used in the regimen, as Louisiana did earlier this year when it reclassified the drugs as “controlled dangerous substances.” This designation is typically reserved for dangerous or highly addictive drugs such as opioids and depressants; abortion pills are neither, and they are safer to use than Tylenol and Viagra. Misoprostol, a stomach-ulcer medication, is used off-label for a range of life-saving gynecological care, including managing postpartum hemorrhaging; hospitals in Louisiana had to change their protocols around its use, and physicians have warned about the risks their patients face as a result.

Carson says the Trump administration could direct the Drug Enforcement Administration to similarly reschedule the drugs, quickly cutting off abortion access nationwide. “The Louisiana law carves out only pregnant people, and so being in possession of these medications if you are not pregnant would open people up to legal risk,” she says.

Hospitals denying emergency abortions

Following the Dobbs decision, the Biden administration said the Emergency Medical Treatment and Labor Act, better known as EMTALA, applies to pregnant people who need emergency abortions. The administration’s guidance says the Reagan-era federal law, which requires hospitals receiving federal funding to stabilize patients in need of emergency treatment, supersedes state abortion bans. A legal challenge addressing this issue made it all the way to the Supreme Court, where the conservative supermajority declined to rule on its merits and sent it back down for further litigation.

The Trump administration could direct the Justice Department to withdraw from the ongoing legal challenges, according to the Guttmacher Institute. Project 2025 also calls for rescinding Biden’s EMTALA guidance. Without that guidance, hospitals — even in states that protect abortion care — could decline to provide stabilizing treatment to those whose pregnancies are threatening their life. “We’re talking about situations where the person’s health, life, or fertility is on the line,” Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights, previously told me. “These are not cases where a pregnancy will result in a child that a person could take home. Denying them care is just punishing people at their most vulnerable moment.”

Anti-abortion zealots as Trump Cabinet picks

In his first term, Trump installed anti-abortion officials who aggressively pushed their agenda in positions ranging from Cabinet roles to overseeing smaller departments. Take Scott Lloyd, former director of the Office of Refugee Resettlement at the Department of Health and Human Services, who personally blocked pregnant migrant teens from getting abortion care. Trump is poised to repeat this in his second term: Conspiracy theorist and anti-vaxxer Robert F. Kennedy Jr. — who during his presidential campaign endorsed a federal ban on abortions after the first trimester — has been floated to potentially lead the Department of Health and Human Services. Jonathan Mitchell, the conservative lawyer behind SB8, the state’s infamous bounty-hunter law, is another person in Trump’s orbit who has been cause for concern among abortion-rights advocates for a long time. Following Dobbs, Mitchell has gone after abortion funds and health providers in court. He has also represented men taking legal action against former partners who terminated their pregnancies and the people who’ve helped them.

If/When/How, which supports people who’ve been criminalized for their pregnancy outcomes, is particularly concerned about what abortion opponents could do if appointed to lead federal law-enforcement agencies. “Our fear is that people who want to stop abortion access in a position of power in the Department of Justice would use every weapon at their fingertips to punish abortion seekers and helpers,” Carson says. “Crossing state lines has been something that has been less of a fear with a friendly administration. But if they have access to the myriad of tracking tools that the government uses, such as license-plate scanners and facial-recognition material, it would be easier for them to track people.”

Threats to birth control and other reproductive-health services

In his previous term, Trump unsuccessfully attempted to repeal the Affordable Care Act. He seems open to trying again, and House Speaker Mike Johnson has said that eliminating Obamacare would be a priority for the Republican Party in the next congressional term. (Project 2025 also calls for pursuing a repeal.) If Trump and the GOP are successful this time, insurance coverage for preexisting conditions, including pregnancy, could be at risk, and more than 48 million women could lose access to no-cost birth control in their health plans.

Candace Gibson, director of state policy at the Guttmacher Institute, worries that the next Trump administration will roll back access to sexual and reproductive health care for marginalized communities. She pointed to how Trump previously took Title X family-planning funds for low-income patients away from health-care providers who performed or referred patients for abortions. (The Hyde Amendment already prohibits the use of federal funds for abortions, with limited exceptions.) While Trump was in office, the policy, commonly known as a domestic gag rule, impacted about 1.6 million patients in need of contraception. He is likely to reinstate the rule as well as its international counterpart, known as the Mexico City Policy. This will impact millions of patients around the world who need access to free or low-cost reproductive-health services. The International Planned Parenthood Federation also estimates that once the global gag rule is implemented, the organization will lose around $60 million in U.S. funding.

More state abortion restrictions and anti-abortion judges

Carson expects that Republican-led state legislatures, emboldened by Trump’s victory, will introduce a slate of new anti-abortion bills. Some of the restrictions abortion opponents could tackle include criminalizing patients, making it harder for people to travel out of state for abortion care, targeting minors who need to terminate their pregnancies, and defunding universities that provide medication abortion to students through their health centers.

Advocates also worry whether the shield laws passed by Democrat-led states, which protect health providers and patients, will actually hold up under the Trump administration. “They have been successful in getting a lot of care to a lot of people, but they have not been stress-tested yet,” Carson says. “We’re nervous about the testing of shield laws generally, and also that we will not have the same support from attorneys general when they have the weight of the federal government against them.”

Then, there’s the matter of the courts. By the time his first term ended, Trump had nominated three right-wing Supreme Court justices and stacked the lower courts with conservative jurists, appointing around 28 percent of all active federal judges. He’ll now have another shot at appointing more federal judges who will wield considerable power over abortion laws. Justices Samuel Alito and Clarence Thomas are now in their 70s, which means that Trump may also have the chance to appoint two young conservatives to replace them should they retire.

The extent of the damage won’t come into focus for some time, but the incoming Trump administration will without a doubt further erode abortion rights in the U.S. “He had the most pro-life administration in history and adopted the most pro-life policies of any administration in history,” Roger Severino, a former Trump administration official and staunch abortion opponent, told the New York Times earlier this year. “That track record is the best evidence, I think, you could have of what a second term might look like if Trump wins.”

The Cut offers an online tool you can use to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.