What would happen to abortion rights if Trump won?

Scholars debate the enforcement of bans and regulations that are on the books

Legal experts have warned of what might happen to abortion rights if Donald Trump assumes office again. 

The Post Office could go after companies that mail abortion medications under an antiquated law known as the Comstock Act. The Food and Drug Administration could rescind approval for one or both of the pills in the regimen. No one, perhaps not even Donald Trump, would know what would happen if he won, according to Harvard Law Professor Glenn Cohen. 

“There's a question about whether the Trump administration will be the dog that caught the bus that doesn't know what to do, runs after the bus, and then doesn't know what to do,” Cohen said. 

There also remain many challenges at lower levels of government as there are jurisdictional disputes between different states over where the location of an abortion should be designated. That matters because pills can be prescribed from elsewhere and taken in an abortion-restrictive or banned state. If the abortion is deemed to have happened in a place like Alabama, then it would be considered a violation of state law. 

That’s something that pioneering abortion rights scholars Greer Donley, David Cohen (no relation to Glenn), and Rachel Rebouche wrote about in a Stanford Law Review article published in February. They pointed out that the location of an abortion could be at several places: 

It could be where the patient interacts with the medical professional and receives the pills. It could be where the patient ingests the mifepristone. This could be in the medical office or later when the patient returns home. It could be where the patient ingests the misoprostol. This usually occurs twenty-four hours after the mifepristone is taken. Or it could be where the patient expels the products of conception. This could occur within hours of taking the misoprostol or a few days later. 

With each step, a patient could be in a different location. 

Professor Glenn Cohen explained the ambiguity of that issue.

“It's not clear what the view of the Supreme Court is in the legality of doing so under some complicated questions,” Cohen said. 

The Justice Department issued a report in 2022 that answered many of the questions about federal enforcement of antiabortion laws. In it, leaders said that the Comstock Act couldn’t be enforced. It focused on the question of whether it was “unlawful” to mail a drug. The underlying argument implied is that it could be sent for lawful purposes. Misoprostol has other purposes medically beyond inducing an abortion. It was also connected to whether the manufacturers of the drugs knew that they would be used for abortion. 

In 1971, Congress amended the Comstock Act not to include the mailing of contraceptives. And the Supreme Court’s decision in Roe rendered the rest of it unenforceable. For the next 50 years, the constitutionality of the Comstock Act was not a question considered by the Supreme Court. 

Abortion rights scholars Reva Siegel and Mary Ziegler will publish an article in the Yale Law Journal in the coming months about the history of the Comstock Law. They argue that the original law regulated obscenity instead of healthcare. What qualifies as obscene has narrowed considerably in the last century. The Comstock Act may be unconstitutional because it violates the First Amendment. 

The Comstock Act was aimed at promoting sexual purity. The law's defenders said that erotica, birth control, and abortion advertisements and mailings threatened that. They demanded control over speech and items that promoted lustful lifestyles, according to Siegel and Ziegler’s article. 

The early birth control movement focused on resisting the Comstock Act because the First Amendment protected birth control information. Many famous feminists, including Planned Parenthood founder Margaret Sanger, went to prison to challenge the law. 

Several landmark cases in the ensuing decades strengthened First Amendment protections against prosecutions under the Comstock Act. Legally, the trend has been against enforcing the law. 

Ironically, if the Supreme Court permits its enforcement, it would go against Justice Samuel Alito’s contention that abortion regulation should fall to the states.

“If your picture of the world is what Justice Alito claims to be that ‘Let's let individual states make some decisions,’” Glenn Cohen said, “that does not seem to be the direction we go when it comes to mifepristone or the Comstock Act, which would essentially create some national abortion policy that would undercut abortion access.”