In the lead up to the election, Donald Trump would not directly answer questions about his plans for enacting a federal abortion ban, despite repeated inquiries in press interviews. But in August, JD Vance claimed that Trump had “explicitly” stated that he would veto a federal abortion ban that was passed by Congress. Trump was quick to note that the running mates had not talked about the issue—but not long after, he declared on social media that he “would not support a federal abortion ban, under any circumstances” and would veto such a bill if it came across his desk.
A shift in messaging
Trump’s public statement about rejecting a federal abortion ban seemed to echo Vance’s previous comments on the matter. On the campaign trail, both candidates sought to distance themselves from some of the more extreme anti-abortion views of the Republican party. While Trump bragged about appointing the Supreme Court justices who overturned Roe v. Wade, he also dropped terms like “pro-life” from his abortion rhetoric, in addition to ostensibly changing his stance on a federal ban; he has dodged questions about federal abortion policies by saying the Supreme Court ruling now leaves those decisions to states.
During the vice presidential debate, Vance also argued that the Republican party had lost credibility on the topic of abortion. “We’ve got to do so much better of a job at earning the American people’s trust back on this issue where they, frankly, just don’t trust us,” he said. “That’s one of the things that Donald Trump and I are endeavoring to do. I want us as a Republican Party to be pro-family in the fullest sense of the word.”
Given Trump’s history of supporting anti-abortion measures—both as president and during previous campaigns—many observers have argued this shift in messaging was likely a bid for moderate voters who were put off by the fall of Roe and the severe abortion restrictions ushered in by the ruling. Even if Trump keeps his word about vetoing a federal abortion ban, however, legal experts have warned that anti-abortion advocates could take another approach to curtailing abortion access nationally, one that would not require approval from Congress.
Abortion pill access
In recent years, anti-abortion advocates have cited the Comstock Act as a legal basis for prohibiting the mailing of abortion pills. The law, which dates back to 1873, was originally intended to limit the distribution of “obscene, lewd, or lascivious material,” which included contraception and abortion-related drugs. By the 1960s, multiple court rulings had gutted the law, and it was later rendered moot when Roe enshrined a federal right to abortion.
Since Roe was overturned, however, conservative organizations have called attention to how federal laws like the Comstock Act could be used to restrict medication abortions, as part of the fight to limit access to abortion pills; in fact, the law is directly referenced in Project 2025’s policy recommendations. The Comstock Act was also invoked in a major case earlier this year that targeted mifepristone, one of two pills used for medication abortions.
The Supreme Court ruled against the plaintiffs in that case and protected access to the drug—but a new lawsuit brought by the attorneys general of Missouri, Idaho, and Kansas is designed to revive the challenge to mifepristone, by targeting recent regulatory changes made by the Food and Drug Administration (FDA) to expand access to the drug.
Contraception and other medications
Writing in Politico, law professors Mary Ziegler and Reva Siegel argued that even if the new lawsuit fails, the Department of Justice under the Trump administration “could enforce this reading of Comstock—against patients or doctors in any state.” The effects would go beyond just medication abortions: If the Comstock Act was enforced with this reading, Ziegler and Siegel posit, it could be applied more broadly to all kinds of abortions, by restricting the distribution of the equipment and supplies doctors need to perform an abortion. The language of the Comstock Act could also be interpreted to include contraception or medications associated with fertility treatments or gender-affirming care.
In other words, Trump may not need to sign onto a federal abortion ban to restrict access to abortion, even in states where those rights are currently protected. Prior to the election, legal experts and abortion advocates had already sounded the alarm on this issue, calling for Congress to preemptively repeal the Comstock Act—and in June, Democrats in Congress had introduced legislation to repeal the abortion provisions of the law. Despite the outcome of the election, Senate Republicans don’t have the supermajority they need to handily push through a proposed abortion ban, and any kind of federal ban would also face legal challenges from abortion advocates. But conservatives could put more pressure on Trump to use the Comstock Act to circumvent Congress.
Other potential restrictions
Beyond the Comstock Act, Trump could find ways to chip away at abortion access when he assumes the presidency in January. His win might prompt a new wave of anti-abortion legislation, and he could appoint federal judges who are opposed to abortion, much like he did in his first term. Judge Matthew Kacsmaryk, whom Trump had appointed to the District Court for the Northern District of Texas, was responsible for the preliminary ruling that suspended FDA approval of mifepristone, before the case made it to the Supreme Court.
Trump could also order the FDA to reintroduce restrictions on mifepristone that would limit abortion access. He could slash federal funding—again—to Planned Parenthood, a move that Vance has already telegraphed in interviews. If Project 2025 is any indication, Trump might also consider reversing the guidance President Biden put into place requiring hospitals to provide emergency abortions when a patient’s life is at risk.
Whatever Trump says—or does not say—about his stance on abortion rights or a federal ban, many conservatives and anti-abortion advocates seem to view him as a strong ally who will promote their agenda. In a New York Times report earlier this year, Roger Severino, who previously served in the Department of Health and Human Services under Trump, said he had “the most pro-life administration in history.” Severino added, “That track record is the best evidence, I think, you could have of what a second term might look like if Trump wins.”
