During Donald Trump’s presidency and in the lead-up to future elections, the question of abortion access has been a highly contentious issue. While no outright federal abortion ban occurred during his first term, understanding the strategies and intentions of Trump and his allies is crucial for anyone concerned about reproductive rights. This article delves into the specific threats and possible responses related to abortion access, focusing on the key question: why did Trump want to ban abortions, and what methods might be employed to achieve this goal?
One primary strategy involves the Comstock Act, an antiquated 1873 law originally designed to combat obscenity. This statute regulates the use of mail and common carriers to transport items deemed “indecent, filthy, or vile” or “intended for producing abortion.” Ironically named after Anthony Comstock, a figure described as a “Victorian-era anti-vice crusader” with extreme views on morality, this law is now being eyed as a tool for a nationwide abortion ban without needing new congressional legislation.
Trump’s strategists, like Jonathan Mitchell, have explicitly stated their intention to weaponize the Comstock Act. Mitchell told The New York Times that a federal ban isn’t necessary “when we have Comstock on the books.” This approach is echoed in Project 2025’s “Mandate for Leadership,” a detailed plan for a potential new Trump administration. The strategy hinges on the idea that because abortion medication and equipment are transported via mail and common carriers, the Comstock Act could be interpreted to prohibit their shipment, effectively halting abortion services across the country. Alarmingly, the Comstock Act contains no exceptions, meaning it could even prevent abortions in medical emergencies where a pregnant person’s life is at risk.
In response to this potential misuse of the Comstock Act, organizations like the ACLU are preparing a multi-faceted defense. Firstly, legal challenges are planned to contest any attempt by a Trump administration to weaponize this law. Legal precedent and historical context strongly argue against the interpretation of the Comstock Act as a nationwide abortion ban. For decades, federal courts have consistently held that the Act only applies to materials intended for unlawful abortions, not legal healthcare procedures. Even the Department of Justice has acknowledged this established legal interpretation. The ACLU will argue that enforcing the Comstock Act to ban lawful abortion flies in the face of settled legal understanding.
Secondly, raising public awareness is crucial. The strategy to utilize the Comstock Act relies on public ignorance, as widespread opposition to abortion bans is well-documented. Jonathan Mitchell himself expressed hope that Trump would remain unaware of the Comstock Act’s potential, fearing public statements could derail the plan. The ACLU is actively working to expose this strategy, collaborating with elected officials and stakeholders to ensure the public understands the threat to reproductive freedom, even in states with abortion protections. This includes working with Congress to highlight the Comstock threat in hearings and supporting legislation to repeal the Act entirely.
Thirdly, the ACLU is building resources to defend individuals targeted under Comstock enforcement. This includes legal support for patients, healthcare providers, and anyone facing prosecution related to abortion care under a Trump administration. The ACLU’s Abortion Criminal Defense Initiative is expanding its network of attorneys to provide robust defense against potential federal prosecutions under the Comstock Act, ensuring that anyone facing charges receives zealous legal representation. This initiative extends beyond criminal defense to include holding government officials accountable for abusing their power to criminalize abortion-related care.
Finally, state-level action is vital. The ACLU is advocating for state legislatures and governors to enact laws preventing state employees from assisting federal Comstock enforcement efforts and empowering them to challenge such actions. While many states have already implemented “shield laws” to protect abortion providers and patients from interstate legal challenges, these may not be sufficient against federal actions. Expanding these shield laws is essential to prevent a Trump administration from compelling state cooperation in weaponizing the Comstock Act.
Beyond the Comstock Act, direct threats to medication abortion also loom large. A second Trump administration could respond to calls to withdraw FDA approval of mifepristone, a safe and effective medication used in the majority of abortions and miscarriage management in the U.S. Revoking FDA approval would effectively ban mifepristone nationwide, even in states with protected abortion access. Even short of a full ban, reinstating medically unnecessary restrictions, such as preventing mail delivery and requiring in-person dispensing, could severely limit access, forcing patients to travel long distances and effectively denying abortion care to many.
Mifepristone’s FDA approval in 2000 and its subsequent safe use by millions have made it a target for abortion opponents. It is used in almost two-thirds of abortions in the U.S. and its availability via mail makes it a particularly accessible option. Anti-abortion groups see mifepristone as a “single greatest threat” to their goal of ending abortion access. While Congress has repeatedly attempted to ban mifepristone, Trump’s allies are urging executive action to revoke FDA approval or severely restrict access through administrative measures.
The ACLU has a history of legal action to protect access to medication abortion, challenging restrictions under both Democratic and Republican administrations. During the COVID-19 pandemic, the ACLU fought against the Trump administration’s in-person dispensing requirement for mifepristone, arguing against medically unnecessary restrictions that endangered public health. Ultimately, the FDA under the Biden administration removed this requirement, acknowledging its medical superfluity.
This fight continues. The ACLU is actively litigating to remove remaining medically unnecessary restrictions on mifepristone. Should a second Trump administration attempt to ban or further restrict access, legal challenges under the Administrative Procedure Act are planned, arguing that such actions would contradict scientific evidence and disregard public health. Public opinion will also be a key battleground, with the ACLU mobilizing public support and working with medical communities and patient advocacy groups to defend access to medication abortion and the integrity of the FDA’s drug approval process.
Threats extend beyond abortion to contraception access as well. While abortion dominated public discourse during Trump’s presidency, his administration also weakened access to birth control and family planning, particularly for low-income individuals. Trump’s allies in Congress have consistently sought to defund family planning programs like Title X and undermine the Affordable Care Act (ACA), which guarantees contraception coverage.
The ACA’s mandate for insurance companies to cover preventive health care for women, including the “full range of contraception” without co-pays, has been repeatedly attacked. Millions of women have benefited from this provision, saving billions in out-of-pocket expenses. However, religious objections to contraception coverage have fueled legal challenges, and a second Trump administration is expected to launch a “full-frontal attack” on birth control coverage. Project 2025 even calls for eliminating certain contraceptive methods from coverage mandates. Trump’s own recent statements suggest a willingness to further restrict birth control access, potentially allowing employers and insurers to deny coverage for all forms of contraception. The ACLU is prepared to challenge such actions in court under the Administrative Procedure Act, arguing against arbitrary and capricious rule changes.
Public mobilization is again essential to counter attacks on contraception. Birth control enjoys widespread support in the US, with over 90% of Americans in favor. The ACLU aims to highlight the Trump administration’s disconnect from public opinion and mobilize activists to defend contraception access. Advocating for state-level initiatives, like California’s Reproductive Health Equity Fund, is also crucial to mitigate federal attacks on reproductive healthcare funding. Furthermore, pushing for federal legislation like the Right to Contraception Act is vital to codify and protect contraception rights at the national level, building upon the precedent set by Griswold v. Connecticut, a landmark ACLU case that established the right to contraception in 1965.
Beyond these major areas, a second Trump administration could leverage regulatory powers to undermine reproductive healthcare in numerous other ways. Rescinding the 2022 HIPAA rule protecting patient privacy related to reproductive health is a significant concern. This rule safeguards against disclosing sensitive health information to hostile parties seeking to penalize individuals for seeking or providing abortion care. Trump’s allies oppose these protections, desiring to facilitate investigations into reproductive healthcare decisions.
Another target is the EEOC’s 2024 rule interpreting the Pregnant Workers Fairness Act to protect workers needing time off to travel for abortion care. With increased interstate travel for abortion post-Dobbs, this rule is crucial for ensuring reasonable accommodations for affected workers. However, states hostile to abortion have already challenged this rule, and a Trump administration is likely to remove these protections.
Defunding Planned Parenthood and similar organizations is another expected move. Despite current federal funding restrictions on abortion services, Trump’s strategists aim to block federal family planning funds from organizations that even refer patients for abortion care. This would severely impact access to essential healthcare services like cancer screenings and contraception for vulnerable populations.
The ACLU is committed to utilizing every available tool to oppose these regulatory attacks. Legal challenges under the Administrative Procedure Act will be considered for any attempts to rescind or replace existing regulations. Simultaneously, the ACLU is collaborating with pro-reproductive rights states to implement state-level privacy protections for health information and ensure robust state funding for reproductive healthcare services, providing a crucial buffer against federal attacks. Understanding these multifaceted threats is the first step in effectively responding and safeguarding reproductive freedom.
