Trump's Controversial Stance on Abortion: States' Rights or Federal Limits in Second Term?

Trump could significantly restrict abortion without ever imposing a federal ban, some experts say. Here's how he could do it.

Trump's Controversial Stance on Abortion: States' Rights or Federal Limits in Second Term?
10 May 2024, 03:34 PM
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Washington — When Donald Trump announced his position on abortion last month — pledging to leave the issue to the states — groups that oppose the procedure and had pushed him to back a federal ban were disappointed. 

"At the end of the day, this is all about the will of the people," Trump said. 

Indeed, his pledge follows what voters have generally reinforced at the ballot box since the Supreme Court overturned Roe v. Wade — that they oppose efforts to restrict access to abortion. His backers within anti-abortion groups have nonetheless urged him to publicly support a nationwide ban, at a minimum, on abortion beyond 15 weeks of pregnancy. 

The plan for abortion under a new administration

A "presidential transition handbook" titled Project 2025, published by the Heritage Foundation includes directives aimed at multiple government agencies that could be enforced by a conservative president. 

The abortion debate through a different lens

Presented by Roger Severino, former head of the Department of Health and Human Services Office for Civil Rights during the Trump administration.

Susie Wiles and Chris LaCivita, senior campaign advisers for Trump, have expressed concerns about potential abortion restrictions in a second term. They emphasized that any official announcements should come directly from President Trump or authorized campaign members.

In the absence of congressional support for new abortion laws, Trump may feel compelled to explore alternative avenues. A proposed outside strategy suggests leveraging existing legislation to significantly impact abortion access, particularly focusing on a historic law and medication abortion.

Challenges with medication abortion

Medication abortions, which make up over half of all abortions in the U.S. annually, are a critical aspect of women's reproductive healthcare and a contentious issue for anti-abortion advocates.

According to Project 2025, abortion pills are deemed "the single greatest threat to unborn children in a post-Roe world," advocating for the FDA to reconsider its approval of these medications.

Mifepristone, the first in a two-drug regimen used to terminate early-stage pregnancies, was approved by the FDA in 2000. That approval and subsequent moves to make the drug more accessible have been the source of intense pushback in recent years. The Supreme Court is considering a case this term concerning the rules around the drug's use.

Although the high court appears poised to reject a challenge to the drug's availability on procedural grounds, a new administration could take other action to curtail access to the medication. For instance, a new FDA chief could decide to review the agency's past actions, including the initial approval and more recent moves that have made mifepristone more widely available, like the ability to get it through the mail. Project 2025 outlines the move as an "interim step," while advocating for full reversal of the drug's approval. 

Trump said in an interview with Time Magazine that he has "pretty strong views" on the abortion pill that he plans to make public in the near future, along with his views on the implementation of a 19th century anti-obscenity law that could mark an even more substantial move to restrict abortion.

Using the Comstock Act to ban the abortion pill — and more

An 1873 law related to the shipping of materials deemed as "obscene, lewd, lascivious, indecent, filthy or vile" has become a primary focus of anti-abortion groups as a method to significantly restrict access to abortion — even without a new law. 

Under the presence of the Comstock Act, those who are against abortion view it as a strategy to promptly start limiting access during a conservative administration.

Project 2025 suggests that following the Supreme Court's reversal of Roe, there is no federal obstacle to enforcing the law, stating that the "next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills."

To achieve this, a Trump administration could nominate an attorney general who believes that the Comstock Act is still in effect and should be implemented as written, according to Rachel Rebouché, the dean of Temple University's Beasley School of Law. She anticipates that a Justice Department under an administration seeking to enforce the Comstock Act could prohibit anything used in support of an abortion — not just the mailing of abortion pills. 

"I think that a new administration could try to take action to put people in jail for mailing anything, but, you know, pills included, that assist in an abortion because the act is really broad," Rebouché said, adding that it could amount to a "defacto" abortion ban nationwide if it's applied in a broad sense.

According to Mary Ziegler, a historian and law professor at the University of California, Davis, the Comstock Act could provide a way for presidents to significantly limit access to abortion while maintaining some political cover or "plausible deniability." Instead of signing a new abortion ban, they could claim they are simply "enforcing the law."

However, Ziegler explains that the ultimate goal of the movement is not just to enforce the Comstock Act and restrict abortion access.

"The Comstock Act is more of a short-term strategy," she said. "Personhood is the long-term goal."

The enduring battle for personhood

The concept of personhood, specifically when human life begins, has been a topic of extensive philosophical debate for centuries. In addition to this, there has been a legal argument regarding whether fetuses should be granted the same rights as any individual under the law, often referred to as fetal personhood.

While the Supreme Court did not address the question of when life begins in Roe v. Wade, choosing instead to link abortion access to the viability standard (the point at which a fetus could survive outside the womb), the issue was also not directly tackled in the overturning of Roe. Justice Samuel Alito, who authored the majority opinion, did make mention of it.

Reimagined News

Justice Alito stated that the opinion is not influenced by any specific belief on when prenatal life should be granted the rights that are typically enjoyed after birth. He argued against the dissenting liberal view, suggesting that it imposes a theory regarding the beginning of personhood rights that is not supported by the Constitution or legal tradition. However, he did not dismiss the possibility of considering an alternative theory for the commencement of personhood rights.

"Unborn child" in federal law

The topic recently arose in discussions at the Supreme Court during a case involving Idaho's near-total abortion ban and the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that mandates Medicare-participating hospitals to provide stabilizing treatment during medical emergencies.

During the hearings last month, Justice Alito focused on EMTALA's use of the term "unborn child" within its definition of an "emergency medical condition," which includes situations where the health of the mother or her "unborn child" is at serious risk. Alito suggested that in such scenarios, the hospital is obligated to stabilize the threat to the unborn child. He indicated that the hospital must work towards eliminating any immediate danger to the child, and performing an abortion would contradict that responsibility.

Meghan Boone, a professor at Wake Forest School of Law specializing in reproductive rights, interpreted Alito's statements as implying that "EMTALA establishes an equivalent obligation to both the pregnant individual and the fetus, making it incompatible with permitting abortions since doing so would compromise the fetus's well-being." 

Interpreting the law in this manner, it is argued that "the fetus holds all the cards," and the only appropriate course of action is to accept any potential health risks that may arise from allowing the pregnancy to continue as long as there is a chance of the fetus surviving.

There is speculation that the Supreme Court may not want to directly address the question of whether fetuses should be considered people. However, the arguments presented suggest that the Court may be open to a decision by a Republican presidential administration to legally treat fetuses as fully realized individuals.

If fetuses are granted personhood status with legal rights, then abortion could potentially be classified as a form of murder.

This approach to fetal personhood could serve as a means to restrict abortion on a national scale without the need for a traditional ban on the procedure. A recent ruling in Alabama underscored the significance of this issue.

Challenges to in vitro fertilization

Earlier this year, the Alabama Supreme Court delivered a verdict implying that embryos should be granted the same rights as actual children. In a case related to a wrongful death claim, the court ruled that frozen embryos used for fertility treatments could be legally regarded as children under an Alabama statute dating back to 1872, thus entitling them to protections equivalent to those provided to children.

Although the state legislature moved quickly to protect access to IVF amid intense backlash, the ruling has drawn attention to personhood laws elsewhere. According to a report from Pregnancy Justice, a pro-abortion rights group, at least 11 states have broad personhood language on the books, while at least five more states define personhood as including fetuses within their criminal code.

Rebouché said the Alabama ruling signals "there's a will to use both existing law and potentially to enact new law that confers legal rights on the unborn." But exactly what that would look like remains to be seen.

In late February, shortly after the Alabama ruling, Sen. Tammy Duckworth unsuccessfully tried to get legislation protecting access to IVF through the Senate. And it wasn't the first time. The Illinois Democrat had tried to get support for the bill in the months following Roe's reversal and had taken steps even before, recognizing that the movement would likely target IVF.

"I've been talking about this now for well over 10 years, but it really came out of my personal IVF experience talking to my doctor," Duckworth told CBS News.  

The Illinois Democrat said she first learned about the personhood push in part when she was going through IVF herself, when her doctor warned her as they were set to discard nonviable eggs that under the new personhood pushes under consideration throughout the country, the act could be potentially considered manslaughter or murder.

Democratic Rep. Lori Trahan on IVF and the Presidential Race

Democratic Rep. Lori Trahan of Massachusetts shared her personal experience of using IVF to conceive her two children, emphasizing the importance of access to this treatment in the upcoming presidential race.

She stated, "I mean, this is going to be a huge issue as women go to the polls and not just women, people who want to start families, people who go to IVF clinics as their last hope to starting a family. This is going to be on your mind as they go to the ballot box."

Looking ahead, there is anticipation for continued pushes for personhood at the state level, with the ultimate goal being a Supreme Court decision to recognize personhood nationwide. However, this outcome is not expected to be immediate.

While President Trump has expressed strong support for IVF, labeling it as a means for couples trying to have a baby, there remains ambiguity regarding his stance on embryos as children. Additionally, despite Trump's statement against a nationwide abortion ban, some, like Duckworth, believe his actions paint a different picture.

"Trump cannot be stopped from spreading falsehoods," Duckworth declared. "However, his actions speak volumes—he takes pride in endorsing these extreme abortion bans and the personhood movement. He will say whatever he deems necessary to win the election, but we all recognize that Trump is a habitual liar."

Duckworth's stance resonates with Democrats nationwide. Abortion has become a focal point of President Biden's campaign for reelection. Biden and Vice President Kamala Harris present themselves as staunch advocates of abortion rights, contrasting themselves with Trump and the Republicans, whom they accuse of seeking to restrict these rights.

Contrary to this, Trump's campaign asserts that he has been consistently clear in his position—he will not support a federal abortion ban and will defer abortion-related decisions to individual states.

Wiles and LaCivita concurred, stating, "Despite our unequivocal stance, certain 'allies' seem to have missed the message. The media, driven by their anti-Trump agenda, continues to rely on anonymous sources and speculation about a potential second Trump administration in an attempt to thwart his reelection."

Nevertheless, Ziegler suggested that Trump tends to defer many critical decisions to the anti-abortion movement.

"He tends to appoint individuals from this movement to his administration and entrust them with decision-making," she anticipated.

In his concluding remarks in a video statement, Trump outlined what he believes is necessary to "reclaim our societal values."

"Listen to your heart when it comes to this matter. However, keep in mind that winning elections is crucial for the preservation of our culture and the future of our country," he emphasized. "Follow your heart, but remember, victory is essential. We must emerge victorious."