Commentary: A second Trump administration could make abortion restrictions even worse
It‘s preposterous that Donald Trump has declared that he will be a “protector” of women. Never has he been.
During his (hopefully only) administration, he nominated three anti-abortion judges to the Supreme Court who were instrumental in overturning Roe vs. Wade which, for half a century, guaranteed the constitutional right to abortion. One of his nominees to the federal bench in Texas tried to take medication abortion off the market in 2023 and almost succeeded.
Since the Supreme Court’s 2022 ruling returning the decision on abortion to the states, nearly half enacted abortion bans, some of which have prevented women from getting emergency abortions to save them from severe health complications or death. The infant mortality rate rose, particularly among babies with severe abnormalities, which researchers say could be the result of women being forced to carry doomed babies that will die shortly after birth.
From the top of the ticket to local ballot measures, California voters this year are grappling with major decisions that will shape their lives and communities for years to come.
If Trump is elected again, expect more of the same. Even though state governments set abortion laws now, a hostile Trump administration could have a significant and disturbing impact on reproductive freedom. Here are some of the ways:
National abortion ban
Trump has been all over the map. He has said he will support a national abortion ban and then he said he won’t. During his debate with Vice President Kamala Harris in September, he refused to say whether he would sign a ban if it came to him from Congress. Then in October, during the Vice Presidential debate, he wrote on Truth Social that he would veto a ban. So, while a national abortion ban is uncertain under a Trump administration, it is certain there would not be a national right to abortion — something Harris has long fought for. It would be an uphill climb, requiring at least 60 votes in the Senate to quash a filibuster before it ever got to a President Harris for her signature. But nationwide abortion protections would have more of a chance during a Harris presidency than a Trump one.
Kamala Harris, the most unexpected and historic of major presidential candidates, has already earned your vote.
Eliminate medication abortion
This is a favored target of abortion opponents because it is the most common method, accounting for 63% of abortions in the U.S. last year. Antiabortion doctors brought a case arguing, baselessly, that the U.S. Food and Drug Administration hadn’t studied one of the medications, mifepristone, carefully enough. The Supreme Court threw out the challenge in June ruling that the doctors didn’t have legal standing to bring the case.
That doesn’t mean another group of doctors couldn’t sue. And if Trump becomes president, why would they bother with the trouble of going to court? It’s possible that his Secretary of Health and Human Services could order the FDA to take the medication off the market even if the agency’s scientists had concluded it is safe. (That would likely prompt some pushback from drug companies worried that their FDA-approved drugs could also be yanked off the market.)
More likely, abortion opponents would ramp up their efforts to revive the Comstock Act, a 19th century vice law that prohibited anything “lewd” from being sent in the mail, including any material for abortion procedures. Biden’s Department of Justice concluded two years ago that this outdated act doesn’t apply to anything being delivered for a lawful abortion. But there are already antiabortion state attorneys general who have argued the opposite and a Trump Justice Department could side with them.
During election season, expect to hear Republicans peddle falsehoods about abortion to discredit it and demonize the people who provide or support it.
That decision (if upheld in courts) could effectively stop medication abortion across the country, including in states, such as California, where abortion is legal. Pills for abortion couldn’t legally be mailed by a pharmacy to anyone, anywhere, to an individual or a health care provider. The Comstock Act could even be used to stop clinics from receiving medical instruments they need for traditional abortions. (Although it would be more difficult to prove that something was being mailed for an abortion as opposed to some other medical procedure.)
Emergency care
Currently, the federal Emergency Medical Treatment and Labor Act — known as EMTALA — requires hospitals that get Medicare funding provide abortions when a pregnant person’s health is in serious jeopardy. That doesn’t mean near death.
The Biden administration sued the state of Idaho arguing its draconian abortion restriction violated EMTALA because the state prohibited emergency abortions unless the pregnant person is near death. The Supreme Court kept an injunction in place blocking that part of the state law but kicked the case back to a lower court, leaving unsettled what exactly EMTALA requires in the way of an emergency abortion.
A Trump administration could interpret EMTALA to cover emergency abortions only when a person is about to die. Or it could decide that EMTALA requires doctors treat the unborn fetus as a patient equal to the woman carrying it even as her health deteriorates. A federal law that should protect a pregnant woman could end up allowing states to reduce her to nothing more than an incubator.
Abortion access is about health care and agency over a person’s own body. A second Trump presidency could endanger that freedom even more than his first already did.
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