Trump’s Next Attacks on Abortion Rights Will Be More Insidious Than a Ban

Mother Jones illustration; Unsplash

During his campaign, incoming president Donald Trump did everything possible to muddy his record on abortion and reproductive healthcare.

He flip-flopped on whether he supported outlawing abortion and declined to answer questions on birth control and medication abortion. He bragged about appointing the three Supreme Court justices who overturned Roe v. Wade but also assured voters—after months of hemming and hawing—that he’d veto a national abortion ban. Rushing to stem political damage from an Alabama court ruling, he declared himself the “father of IVF,” adding that he’d asked a female senator to explain it to him. Then Trump—who a jury found liable for sexual abuse in 2023, and who 23 women have accused of sexual misconduct—declared himself a “protector” of women.

Now, as the inauguration approaches, abortion and reproductive healthcare are two issues notably absent from the list of actions Trump has promised to take on January 20 at 12:01 p.m.—the moment after he would be sworn in. As leading abortion rights scholar Mary Ziegler pointed out this week at Slate, it’s far too early to know if Trump will implement a national ban (or, in anti-abortion movement parlance, a “minimum national standard”), or if he’ll “leave abortion to the states,” as he’s said he wants to do. Meanwhile, he can just sit back while Republican statehouses pass ever more extreme legislation and courts packed with Trump-appointed judges green-light the anti-abortion movement’s favorite legal theories—with devastating consequences for pregnant people.

But there are some things that we do know that we can glean from Trump’s first term, as well as the records of his cabinet nominees and the stated priorities of his allies and advisers. Each offers some clues to the incoming administration’s potential angles of attack on reproductive rights and healthcare. “Trump saw that anti-abortion policies and rhetoric are broadly unpopular with the American people, and so he tried to run away from those unpopular opinions,” says Brittany Fonteno, president and CEO of the National Abortion Federation, a professional association of abortion providers. “We can’t be fooled by things that were said during the election season to win.”

Here are some areas we will be watching:

Abortion pills

Around two-thirds of all US abortions are now done with medication—often a combination of the progesterone-blocking drug mifepristone and the common anti-ulcer drug misoprostol, whose ease of use is part of the reason the number of abortions has gone up even after the Supreme Court overturned Roe. That makes these pills a top target for the anti-abortion movement, which has pushed the theory that the next attorney general could singlehandedly cut off the supply chain of these medications by reinterpreting the Comstock Act, an anti-obscenity law from the 1800s. That law made it a crime to mail “every article or thing designed, adapted, or intended for producing abortion.” (The Department of Justice currently restricts its interpretation to apply to illegal abortions.)

Other threats to medication abortion access could come from the Department of Health and Human Services, home of the FDA, which controls mifepristone’s approval. The agency approved mifepristone in 2000 and has gradually loosened restrictions on it, recognizing the robust medical evidence that the drug is both effective and safe. This term, the FDA nonetheless could try to revoke mifepristone’s approval or impose burdensome restrictions, like requiring multiple in-person doctor visits. 

Emergency room care for pregnant people

Hospitals that take federal money are required by federal law to screen and stabilize anyone who shows up with a medical emergency. During the Biden administration, the DOJ issued guidance making it clear that if an abortion was necessary to stabilize a patient—for instance, for a pregnant person with an ectopic pregnancy or incomplete miscarriage—hospitals were obliged to provide it, regardless of state laws banning abortion. States like Idaho and Texas have vehemently fought this mandate, despite the accumulating evidence that doctors in abortion-ban states are delaying emergency treatment as pregnant people are faced with spiraling medical crises, sometimes resulting in their deaths—and the Supreme Court last term refused to intervene. The Trump administration is likely to revoke the Biden-era guidance, according to the Guttmacher Institute, and could also withdraw lawsuits attempting to enforce the federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA).

Privacy protections

Last April, the Biden administration issued rules under HIPAA, the law that protects patients’ health information, to prevent prosecutors from obtaining the medical records of abortion-seekers. The rules clarified that hospitals and clinics were forbidden from handing over information about a patient’s lawful reproductive healthcare when requested by law enforcement. They were designed to help protect those who cross state lines to get an abortion—in 2023, numbering over 171,000 people —and those who assist them. But as with all regulations, they can be withdrawn or rewritten. Carmel Shachar, head of the Health Law and Policy Clinic at Harvard, told PBS last spring that the new HIPAA protections would be vulnerable to “flip-flopping.” 

Shield laws

At least 22 states have passed laws that claim to protect abortion providers from out-of-state investigations or prosecutions, and 17 have passed shield laws for doctors who provide gender-affirming care to transgender youth. Over the last two years, blue-state doctors providing abortion pills by telehealth to red-state patients have become a crucial part of the US abortion-access infrastructure. Texas Attorney General Ken Paxton recently filed the first shield law challenge, suing a New York doctor who allegedly used telehealth to prescribe medication abortion to a woman in Texas, where such treatment is forbidden. Paxton has an ally in Harmeet Dhillon, Trump’s appointee to run the Justice Department’s Office for Civil Rights, who has gone on record arguing that shield laws violate the Constitution and may soon be in a position to attack them, as the San Francisco Chronicle reported.

Teenagers

Over the last few years, conservatives have adopted “parental rights” as a rallying cry in their efforts to ban books and classroom discussion related to LGBTQ people; to block schools from recognizing and respecting students’ gender identities; and, somewhat counterintuitively, to outlaw gender-affirming medical care for the tiny fraction of kids who need it, even when they have the support and consent of their parents. The crackdown on teenagers is now likely to roll back their access to birth control. Since 2021, the federal government has told family planning clinics that they cannot notify parents, or require parental consent when providing birth control and other services to teenagers. Texas has successfully argued that such measures violate “parental rights”—and it wouldn’t be a surprise to see the regulations withdrawn in the next Trump administration. 

Sexual and reproductive healthcare for people in poverty

Under Title X, a federal safety net program, the government provides funds to clinics that offer free birth control, cervical cancer screenings, and STI testing and treatment to low-income and uninsured people. Trump is expected to reinstate the “domestic gag rule” from his first term, which prohibited clinics that accept Title X money from referring patients to abortion providers. Last time around, many clinics withdrew from the program—resulting in an estimated 1.6 million patients losing access to federally subsidized birth control. Trump is also virtually certain to re-impose the “global gag rule,” restricting US health assistance from going to nonprofits working in other countries that provide or simply share information about abortion—even if they fund those efforts using non-US money.

Birth control

It’s not just the attacks on Title X that threaten access to contraception. The anti-abortion movement has long pushed scientific misinformation to argue that certain types of birth control, like the morning-after pill and IUDs, should be classified as forms of abortion. (Some go so far as to claim that all types of hormonal birth control, including the pill, are “abortifacients.”) Project 2025—crafted by former and future Trump officials and spearheaded by the conservative Heritage Foundation—suggested ways to embed this classification in federal policy. Look for more of these claims to come from Trump appointees and potentially Supreme Court justices: The court recently agreed to hear a case challenging the Affordable Care Act’s requirement that insurers cover preventative care, including birth control and the HIV-prevention medication PrEP, at zero cost to patients. The case could have even broader ramifications than 2014’s Burwell v. Hobby Lobby, which widened religious exemptions to the contraceptive mandate. If the mandate is overturned, the out-of-pocket cost for many birth control methods could skyrocket.

The finances of the abortion-rights movement

From clinics to research teams to legal and policy groups, the organizations that work for abortion rights are almost always nonprofits. Anti-abortion groups often file IRS complaints accusing abortion-rights groups of violating rules restricting nonprofits’ political activities (and sometimes the attacks go in the other direction). While nonprofits’ tax-exempt status is supposed to be determined in a nonpartisan manner, House Republicans passed a bill last year to allow the Treasury Department to revoke the status from organizations it deemed to be “terrorist-supporting.” The bill died before it got to a Senate vote, but it sparked fear among nonprofits of all stripes about the potential for the meaning of “terrorism” to be twisted to punish ideological differences.