Legal scholar anticipates regulatory challenges to abortion access under Trump
Professor Wendy Parmet has written about how anti-obscenity laws could be weaponized against abortion providers and women who get care
(Wendy Parmet)
As has been detailed in this newsletter, abortion access could be threatened in the coming years through postal regulations, drug approval mechanisms, and the evasiveness of federal lawmakers who don’t want to deal with the political blowback that comes from upholding some federal protections on emergency care.
Most abortion rights activists are waiting with bated breath to see how a second Trump administration will approach the issue. Despite promises that President Trump would leave it to the states to regulate, many lawyers, professors, and experts have warned of how access could be targeted. Among them is Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University, who spoke to me about what she expects.
“It's always a little perilous to make predictions,” Parmet said. “I do think that the dangers or the challenges to abortion rights are going to be probably not legislative, but administrative and through issues related to the judicial system and enforcement.”
The Food and Drug Administration is the central administrative agency that could affect abortion access. In a recent Supreme Court case over mifepristone, the first abortion pill in a two-dose regimen, Justice Brett Kavanaugh wrote that a future president could revoke approval for the drug.
Most people expect Trump to appoint Robert Kennedy Jr. as Secretary of the U.S. Department of Health & Human Services, which oversees the FDA. Kennedy has gone on the record to say that he supports abortion rights up to the point of viability, which is past the point when abortion medication is typically prescribed. Politico reported, however, that he had wanted to get approval from the antiabortion lobby as he sought to secure his appointment.
Antiabortion groups have pushed for an influential position in the department for Roger Severino, who wrote much of Project 2025’s vision for the Department of Health. That plan called for rescinding approval of mifepristone.
Additionally, Project 2025 called for the Justice Department and FBI to enforce the Comstock Act. This antiquated law forbade the mailing of abortifacients and birth control information before the Griswold and Roe decisions that legalized birth control and abortion. Parmet wrote that it had dealt more with combatting obscenity during the late 19th and early 20th centuries than it did with reproductive medicine. Margaret Sanger and early birth control crusaders were the primary opponents of the law, and many of their lawyers challenged it under the grounds that it violated their First Amendment rights when they mailed information to people who requested it.
Parmet said that two issues are at work when evaluating the Comstock Act’s relevance to the abortion debate. The first aspect deals with whether people can mail things. The second aspect deals with whether people have the right to provide information on abortion medication on websites and elsewhere. State lawmakers have sought to prevent websites from disseminating that information in Texas and other southern states.
Free speech has been used as a legal principle in defending abortion rights in the last few years. A First Amendment challenge to abortion bans happened in Tennessee, where U.S. District Judge Aleta Trauger struck down the law in October that sought to impose penalties on anyone who helps a minor get an abortion. The decision came after a lawyer and lawmaker challenged the antiabortion law because it violated their First Amendment rights. Attorney Rachel Welty and Rep. Aftyn Behn filed the complaint in July. The victory still has to be finalized as the judge who ruled in their favor has recused herself from the case before it has been finalized.
Another aspect to consider is the conflict between the presidency and state authorities when Biden was president. Parmet anticipates that state attorney generals and other officials will test how far the government is willing to go to challenge potential jurisdictional conflicts like it did with the lawsuit over the Idaho abortion ban and the legal difficulty it presented with the superseding Emergency Medical Treatment and Labor Act, which requires doctors to perform life-saving abortions in ER settings.
“There's going to be pressure on the president-elect from some of his supporters and some of the staunchest opponents of abortion among the state's attorney generals,” Parmet said. “I think they're going to push him, and I think it remains to be seen what will happen.”