President-elect Donald Trump could take actions to "eliminate" access to abortion without the approval of Congress, a constitutional law scholar has said.
On Monday's episode of Stay Tuned With Preet, Kate Shaw, a professor at the University of Pennsylvania's Carey Law School, outlined ways the second Trump administration could further an anti-abortion agenda even without the approval of lawmakers.
During his campaign, Trump said abortion was a state issue and that he would not sign a national abortion ban if it came across his desk.
On the podcast, Shaw described those comments as "opportunistic statements" made ahead of the election "because it was pretty clear that a federal abortion ban would be very unpopular."
"I think everyone should take with a grain of salt those kinds of pledges," she added.
Shaw said that while Republicans won control of the Senate in Tuesday's election, they do have not a filibuster-proof majority, which would require 60 votes. However, she continued, the incoming Trump administration "could do a lot to limit or eliminate access to abortion without any act of Congress."
As an example, Shaw said the administration could enforce the Comstock Act, a 19th-century "anti-vice" law enacted to prohibit the mailing of any "instrument, substance, drug, medicine, or thing" that could be used in an abortion.
The law was dormant in the 50 years following the Supreme Court's ruling in Roe v. Wade, which established a federal right to abortion. After the court overturned Roe in 2022, anti-abortion groups and conservatives have sought to use the law to prevent the mailing of mifepristone, the pill used in a majority of abortions in the U.S.
The Comstock Act "has been dormant but is still on the books," Shaw said, adding that it is "something that a number of people around Trump have suggested will be enforced in a second Trump administration and enforced to target individuals who send abortion pills through the mails."
"If you decided that the pills and devices used in abortions are essentially the kinds of immoral goods or devices that this, again, Victorian-era statute prohibits sending through the mails, then they might try to target people—again, physicians, providers, drug manufacturers—under the Comstock Act," Shaw said.
"Let me be clear, I think the act and that kind of enforcement is clearly unconstitutional, but you'd have to bank on a majority of the Supreme Court agreeing with you … and maybe the ultimate result would not preclude them trying that kind of enforcement in the short term," she continued.
Newsweek has contacted Trump's team for comment via email.
Shaw also said it was possible that the Food and Drug Administration under Trump could reverse the approval of mifepristone to terminate pregnancies.
In June, amid a case that threatened to restrict access to the drug across the country, the Supreme Court ruled that abortion opponents lacked the legal right to sue over the FDA's approval of the medication and subsequent actions to ease access to it.
"That case is now back in the lower courts, and that's a challenge again to the current conditions under which mifepristone is available," Shaw said.
"But it's not out of the realm of the possible that a Trump FDA could decide to revisit and potentially to reverse just the approval at all of mifepristone for ending early pregnancies," she continued, adding, "It would create a ban on access—again, through, at least through legal channels—to mifepristone everywhere," including in states where abortion is legal.
"The most common method of ending pregnancy today is these abortion pills, and reversing their approval would obviously kick that off the table," Shaw said.
The Comstock Act "enforcement they appear to be contemplating would be constitutionally impermissible under our current understanding of the Constitution," Shaw told Newsweek on Monday.
She added: "And I don't believe reversing the approval of mifepristone would be consistent with the FDA's mandate to ensure drug safety and efficacy. But in both cases, that doesn't mean they won't try."
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