The Next Trump Administration’s Crackdown on Abortion Will Be Swift, Brutal, and Nationwide
On Tuesday, many Americans simultaneously voted to protect abortion rights and elect Donald Trump president. But these two desires—for reproductive freedom and another Trump term—are fundamentally contradictory. Trump's second administration is all but guaranteed to impose major federal restrictions on abortion access. These new limitations will apply nationwide, to states both red and blue, including those that just enshrined a right to protect abortion in their constitutions. It will be harder to access reproductive health care everywhere.
Two and a half years after the fall of Roe v. Wade, even without abortion banned in much of the country, we are likely standing at the highest watermark of abortion access that we will see for years if not decades. The rollback is coming; it will be felt everywhere. And voters who thought they could put Trump back in the White House while preserving or expanding reproductive rights are in for a brutal shock.
Tuesday was a mixed night for abortion initiatives on the ballot, but the overall results reflect a clear rejection of stringent bans. Voters approved initiatives not only in blue Colorado, Maryland, and New York, but also in Montana, Missouri, Arizona, and Nevada—all states where Trump has won or is leading. Pro-choice measures failed in South Dakota and Nebraska, while the latter state enshrined a 12-week ban. Florida's Amendment 4, which would've overturned the state's six-week ban, fell short of the required 60 percent threshold. But it came close, with 57 percent approval. All told, millions of Americans cast their ballots to protect or restore the right to choose.
These victories for abortion, however, are about to crash into the reality of a ruthlessly anti-choice administration. Although Trump claims he wants to leave abortion to the states, the reality is that abortion policy is set, in substantial part, at the federal level. Even if he rejects a congressional push for a new ban, which is uncertain, his appointees will still have the tools to enact devastating anti-abortion policies. Former and future Trump administration officials have, after all, spent the past few years plotting a scheme to impose sweeping restrictions on reproductive health care through executive action alone. They are now well positioned to set their plan, largely outlined in Project 2025 , into action. And we have every reason to believe that Trump will let them do it.
There are two main paths of attack. First, the Food and Drug Administration can revoke approval of mifepristone, the first drug in a medication abortion. Nearly two-thirds of women currently use medication to terminate their pregnancies, and it has proved incredibly safe and effective. The FDA first approved mifepristone in 2000 and has steadily removed restrictions on it since; today the agency allows providers to mail the pill directly to women without an in-person visit. And although the drug is generally banned in states that prohibit abortion, blue states have set up "shield laws" that allow their providers to prescribe and mail it to red-state patients.
Over the past few years, the Republican Party has taken direct aim at mifepristone from every conceivable angle. A GOP-backed interest group urged a Trump-appointed federal judge to overturn the FDA's approval of the drug, which he did last year. The Supreme Court threw out the case because the plaintiffs lacked standing, but 145 Republican members of Congress, in an amicus brief, urged the justices to sharply curtail mifepristone access by judicial fiat. A coalition of Republican attorneys general has now revived the case , demanding that the courts make mifepristone vastly more difficult to acquire.
The second Trump administration, though, won't need the courts to accomplish this goal. Trump needs control over just the FDA, which he will have. In his first term, Trump stacked the Department of Health and Human Services, the FDA's parent agency, with anti-abortion zealots. This time around, the top contenders to serve as his secretary of health and human services are, once again, staunch foes of abortion. (A dark horse candidate, the conspiracy theorist Robert F. Kennedy Jr., recently switched positions on the topic and endorsed abortion restrictions .) Trump's secretary can oust the current FDA commissioner, a Joe Biden appointee, and replace him with an ally who'll go after mifepristone. The agency might impose draconian new restrictions on the drug, or it could revoke approval altogether.
Either step would be devastating for patients across the country. Rolling back access—by, for instance, forcing multiple in-person visits to the doctor—would impose onerous new burdens on abortion in blue states. It would compel countless patients to undergo procedural abortion in a clinic instead of terminating at home; this surge would overwhelm blue-state providers' resources, which are already stretched thin by patients traveling from red states. And an FDA rollback would make the pill nearly impossible to obtain in red states with bans, since blue-state providers could not lawfully send it through the mail via telemedicine.
At first blush, there might seem to be a backup plan. The second drug used in medication abortion, misoprostol, can also terminate a pregnancy when used alone. It's not quite as effective when used without misoprostol, but it suffices as a backup option. So: If the FDA cracks down on mifepristone, can providers prescribe and mail misoprostol instead?
Not without serious legal exposure under the Comstock Act, a very real threat under a Trump-controlled Department of Justice. Congress enacted this archaic law in 1873 as part of a fit of puritanical panic against women's rights. On its face, the law makes it a crime to mail any " or thing designed, adapted, or intended for producing abortion," as well as any "drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion." The Biden administration has interpreted the law to bar only the mailing of drugs intended for illegal use. But several Trump-appointed judges have disagreed, and 20 Republican state attorneys general have already asserted that mailing medication abortion is always a crime. If that's correct, then mailing mifepristone or misoprostol is unlawful.
Trump's leading contenders for attorney general all despise abortion. His U.S. attorneys are also likely to hold anti-abortion views. And, again, red-state law enforcement officials have been pushing for a revival of the Comstock Act since the fall of Roe v. Wade. Pretty much any Republican whom Trump would plausibly trust to hold a leading role in his DOJ will have strong ties to the anti-abortion movement. These prosecutors will have every incentive to bring charges against providers who mail mifepristone—or misoprostol alone if the FDA takes mifepristone off the market. They will be especially eager to target providers operating under blue states' shield laws. These statutes purport to protect providers from criminal penalties if they prescribe and mail abortion pills to patients who live in states with bans. But they apply only to another state's attempt to prosecution and cannot nullify federal law.
Since the fall of Roe, tens of thousands of red-state patients have gotten medication abortion thanks to these laws. Trump's Justice Department may well shut down this backup option by investigating and prosecuting shield-law providers under the Comstock Act. It is, at a minimum, entirely possible that the Supreme Court will agree with its interpretation of the law and greenlight these prosecutions. With blue-state providers facing the threat of prison for helping red-state patients, access to medication abortion in states with bans may effectively disappear.
The Trump administration could go even further. One of Trump's top lawyers, Jonathan Mitchell, has openly argued that the Comstock Act bans all abortions, because its broad language applies even to equipment used to terminate pregnancies in a clinic. But the Trump administration and the Supreme Court need not go that far, and risk incurring massive backlash, to seriously limit access to reproductive health care. A series of administrative and prosecutorial decisions can, piece by piece, add up to a monumental assault on abortion nationwide—even if each decision by itself does not draw the same backlash that shutting down all blue-state providers would.
