How Trump Could Institute a Backdoor Federal Abortion Ban

Mustafa Hussain for The New York Times
People wait for Vice President Kamala Harris to speak about reproductive rights on Jan. 22.

By Mary Ziegler
Ms. Ziegler is a law professor and a 2023-24 Guggenheim Fellow. She is the author of “Roe: The History of a National Obsession.”

For many Americans who support abortion rights, the election in November will most likely come down to a choice between voting for President Biden and staying home. They won’t vote for the man who ensured Roe v. Wade’s demise, but many of them are unenthusiastic about the prospect of Mr. Biden being the Democratic nominee.

So for the Democratic Party, motivating voters on this issue will be key. Mr. Biden’s advisers clearly know this and have sent him and Vice President Kamala Harris on something of a speaking tour this month to highlight their commitment to reproductive rights.

But it’s odd how the Biden-Harris campaign has chosen to speak about this issue, with a heavy focus on their plan to “codify Roe.” Bold congressional action on abortion is unlikely from either side: A federal abortion ban under a second Trump administration is implausible, but it is also unlikely that this Congress, or the next, passes legislation, like the Women’s Health Protection Act, to bring back the protections that were in Roe.

What is plausible is that, returned to the White House, Donald Trump would seek to use his executive power — power that his allies are aiming to increase on his behalf — to further curtail abortion access. He might seem uninterested in doing much of anything about abortion now, on the campaign trail, which is a shrewd political move, given how unpopular abortion bans have proven to be since Roe’s reversal. But that could well change when he is in office again. And Mr. Biden and Ms. Harris would be wise to make clear to voters the real risks of a second Trump presidency for abortion access.

This election is the most consequential for reproductive rights in half a century — a referendum on whether voters continue to be the ones to decide on this issue, or whether instead conservatives in the executive branch will decide for them.

The destruction of Roe in Dobbs v. Jackson Women’s Health Organization was never going to be the end of the battle over abortion rights in America. Since Dobbs, progressive as well as swing states have passed ballot initiatives protecting or enshrining reproductive rights. Polls demonstrate near record support for legal abortion.

Meanwhile, the anti-abortion movement is focused on fetal personhood — ensuring full constitutional rights for fetuses. This singular goal has drawn activists to the anti-abortion movement for decades. The contemporary movement argues that recognizing fetal personhood requires the full criminalization of abortion, including the punishment of doctors and those who “aid or abet” them. Abortion “abolitionists” even argue that personhood requires retribution against women who seek abortions. Anti-abortion groups believe they are advancing the human rights cause of our lifetime.

Fetal personhood may be the ultimate goal of the movement, but the agenda has not proved popular with voters. That’s why plans for a second Trump term’s abortion strategy will probably rely less on voters than on the idea of a muscular executive branch. A playbook for an incoming Republican president created by Project 2025, a well-coordinated effort supported by more than 90 conservative groups, includes attempting to strip access to mifepristone, a drug used in a majority of U.S. abortions.

The availability of abortion pills has made the enforcement of state abortion bans difficult, as Americans can order pills online or travel out of state to get them. That’s why abortion opponents have been gunning for mifepristone, one of two drugs typically used in a medication abortion, including in a 2022 lawsuit, Alliance for Hippocratic Medicine v. Food and Drug Administration. That case, which could severely curb access to the drug nationwide, has now made its way to the Supreme Court, with a decision expected in June.

A second Trump administration could still try to eliminate access to the drug nationwide even if the court sides against the anti-abortion plaintiffs in Alliance for Hippocratic Medicine. The road map created by Project 2025 calls on the F.D.A. to limit access to mifepristone and ultimately withdraw it from the market as a drug “proven to be dangerous to women and by definition fatally unsafe for unborn children.”

The scientists at the F.D.A. might not even need to be on board with this plan for it to work. The secretary of the Department of Health and Human Services, a presidential appointee, can override the F.D.A.’s drug approval decisions — a fact that raised red flags at the height of the Covid pandemic. As the authors of Project 2025’s road map recognize, Republican control of Health and Human Services could mean the end of the most common abortion method in the United States in blue as well as red states.

Leading anti-abortion groups also have coalesced around plans to revive the 1873 Comstock Act; what remains of the broad and archaic law could, anti-abortion groups claim, punish anyone receiving or mailing any “obscene, lewd, lascivious, indecent, filthy or vile article” with up to five years in prison for a first offense. Abortion opponents have reimagined Comstock for a Trump Department of Justice as a way to effectively ban most abortions everywhere, pointing to language in the statute that makes it federal crime to mail or receive any item “designed, adapted or intended for producing abortion.”

The statute hasn’t been enforced much, if at all, in cases of abortion in about 100 years and has been construed as protecting the ordinary practice of medicine since the 1930s. But anti-abortion groups, which are cherry-picking words to turn the statute into a no-exceptions ban, hope that a second Trump administration would ignore federal precedent.

Project 2025’s road map argues that a Republican Justice Department should enforce Comstock “against providers and distributors” of abortion pills. A Trump administration could follow through on these plans by prosecuting doctors and drug companies anywhere in the country: The Comstock Act, as a federal law, could be read to override state protections for abortion rights.

Some key abortion opponents, like the former Texas solicitor general Jonathan Mitchell, argue that Comstock should be interpreted as an effective ban on all abortions because every procedure that takes place in the United States relies on some item placed in the mail, from a surgical glove to a curet. Mr. Mitchell and his allies read the law to exclude explicit exceptions for the life or health of the patient.

Understood in this way, the law could punish women who receive abortion-related items or information using the Postal Service or another carrier or even websites. If a Trump Justice Department began prosecuting doctors for prescribing or shipping pills in New York or California, that would certainly draw a court challenge, and the administration may not have the legal authority to follow through on the plans drawn up by anti-abortion strategists. But abortion opponents like their chances in the Supreme Court and have prepared arguments for Mr. Trump to use that are tailor-made for its conservative supermajority.

It is tempting to dismiss the possibility of such a backdoor federal abortion ban as far-fetched. Mr. Trump hardly sounds like a passionate supporter of fetal rights at the moment, and his embrace of the anti-abortion movement always seemed more a matter of political expedience than a sincere conversion.

But Mr. Trump will have different incentives once in office. Pleasing the social conservatives who donate to his political organizations — the sort of people who could be key to securing his post-presidential future — may strike him as more important than pleasing the majority of American voters. Anti-abortion groups expect Mr. Trump to deliver if he is re-elected and view his current reluctance to discuss abortion as a short-term political necessity.

The choice in this election is not simply between Joe Biden and Donald Trump. The choice is between the status quo — or a chance for more protection for reproductive rights — and the possibility of an effective abortion ban that would be all but impossible to achieve using democratic means.

A Supreme Court transformed by Mr. Trump promised that with the demise of Roe, it would be up to the voters of each state to decide on the future of reproductive rights. If plans for institutionalizing Trumpism come to fruition, the future of American reproductive rights may not be up to the voters of each state for much longer. It may be up to Donald Trump.

More on the continued impact of overturning Roe v. Wade