Apr 8, 2024 - Health

Trump's abortion announcement left one big question

Photo of Trump walking on stage with a flag on the side.

Trump at the 2019 March for Life rally. Photo: Mark Wilson/Getty Images

Former President Trump is refusing to back a national abortion ban, but he could still sharply restrict the procedure if he returns to the White House.

Why it matters: Trump's long-promised statement on abortion Monday didn't clear up whether he would wield executive power to force through limits that anti-abortion advocates are agitating for.

The big picture: After months of wrestling with whether to back a national ban, Trump on Monday endorsed leaving in place the patchwork status quo that's emerged in the states since the Supreme Court that he reshaped overturned the federal right to abortion.

  • He essentially punted on an issue that's vexed the GOP since the 2022 Dobbs decision and turned into a huge liability for them at the polls. Abortion rights advocates will still link Trump to strict bans like the new six-week limit in Florida, and many anti-abortion groups voiced their displeasure with Trump on Monday.
  • Even with full GOP control, Congress likely wouldn't have the votes for a ban on abortion at 15 or 16 weeks, as Trump previously hinted he was leaning toward.
  • That means a Trump-run Justice Department and Health and Human Services would likely have more influence on abortion access going forward.

State of play: Anti-abortion advocates have been laying the groundwork for a Trump DOJ to broadly interpret the 1873 Comstock Act, which banned the interstate mailing of "obscene" material like pornography, as well as abortion drugs and contraception.

  • The abortion provision remained on the books, taking on greater prominence after Roe's demise.
  • Biden's Justice Department issued a legal memo saying Comstock didn't prohibit the lawful mailing of abortion drugs.
  • But anti-abortion groups say the next Republican administration could rescind that memo and use Comstock to shut down not just the mailing of abortion drugs mifepristone and misoprostol but any equipment used in procedural abortions at clinics in those states that allow the procedure.

Any such effort would amount to a de facto national ban and draw a legal challenge from abortion rights advocates that would likely land before the Supreme Court.

  • Conservative justices Samuel Alito and Clarence Thomas both invoked Comstock during recent oral arguments in a case challenging the availability of mifepristone.

What they're saying: Trump hasn't publicly weighed in on Comstock, and his campaign did not respond to a request for comment Monday.

  • Mary Ziegler, a legal historian at the UC Davis School of Law who specializes in abortion rights, told Axios that Trump appears to running two separate campaigns.
  • One tries to appeal to the majority of voters who think abortion should remain accessible. And behind the scenes, in conservative think tanks and law firms, allies are laying the groundwork to implement Comstock while Trump keeps his distance.

Trump is "neither embracing nor rejecting" the idea that he could use Comstock to restrict abortion nationwide, Ziegler said. "He's sort of just letting people draw whatever conclusion they will."

  • Although the Supreme Court appears unlikely to curtail mifepristone access, Ziegler also pointed out that a Trump HHS secretary could revoke the Food and Drug Administration's approval of the drug — though that, too, would draw a legal challenge.
  • Rachel Rebouché, dean of Temple University's law school and a reproductive health law scholar, said it's worth watching if Trump brings up Comstock down the road, and if he does, how he squares that with leaving abortion to the states to decide.

While some anti-abortion groups Monday challenged Trump's "leave it to the states" position, they pointed to the impact his administration could have in a second term.

  • "While federal legislation on abortion policy is challenging at present, we are confident that a Trump administration will be staffed with pro-life personnel committed to pro-life policies, including conscience rights, limits on taxpayer funding of abortion, and protections for pro-life states," CatholicVote president Brian Burch said in a statement.
  • On the other side, Deirdre Schifeling, ACLU's chief political and advocacy officer, acknowledged that possibility.
  • "Trump is a good enough politician to recognize that the American people are in favor of protecting abortion so he is trying to hide the ball," she said. "The American people are not fooled."

Go deeper: Where abortion is on the ballot in November

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