Donald Trump will quite possibly take action shortly after assuming presidential office to curtail the right to contraception and abortion.
With the anniversary of the repeal of Roe v. Wade taking place only two days after his inauguration, Trump may find the date too tempting to pass up. He was the first seated president to attend the annual March for Life Rally in person, proclaiming to the crowd: “Unborn children have never had a stronger defender in the White House. And as the bible tells us, each person is wonderfully made.”
Among immediate actions he could take, for example, would be to announce rule changes once again effectively defunding Planned Parenthood. Ms. Magazine points out that as a candidate, Trump suggested a national ban at 15 weeks. He could urge Congress to pass such a ban, but with the Senate filibuster that seems unlikely. It also seems unlikely because the Christian nationalist anti-abortion extremists intend to abolish abortion nationwide.
An act of Congress may not be necessary to accomplish that “Handmaid’s Tale”-esque coup. Trump’s victory and expected anti-abortion appointments have enabled two backdoor strategies.
FDA revocation of mifepristone approval
Project 2025 calls upon the Food and Drug Administration to revoke approval of mifepristone, one of the two pills used to end unwanted pregnancies via medication. A high-profile lawsuit seeking to ban mifepristone by anti-abortion fanatics court-shopping a Christian nationalist judge, fortunately, proved unsuccessful. But mifepristone remains the target, since medication abortion accounts for 63 percent of abortions in the United States, and efforts to enforce state bans are thwarted because it can be ordered online and via mail.
Trump has nominated the controversial Martin Makary, a critic of the FDA, to head the agency. Reproductive Freedom for All (formerly known as NARAL Pro-Choice America) calls him “a known anti-abortion extremist” who “could weaponize the FDA to effectively ban medication abortion.” He appears on Fox News as a medical contributor, tossing out anti-abortion statements. Catholic Vote gives him an approving endorsement as a “pro-life physician … [whose appointment opens] the possibility of reversing the agency’s illegal approval of the abortion pill.”
Law professor, abortion scholar and FFRF “Forward Award” winner Mary Ziegler warned a year ago that even if the FDA balks at revoking the approval, the secretary of the Department of Health and Human Services can override the FDA’s drug approval decisions.
Resurrect the Comstock Act via the Department of Justice
Yet another backdoor national abortion ban, more far-reaching, has been called for: enforcement of the zombie federal law known as the Comstock Act — passed at the instigation of 19th-century Protestant fanatic Anthony Comstock. The 1873 law barred the mailing of obscene materials, including contraceptives or abortifacients. Anti-abortionists contend the law is still good now that Roe v. Wade has been overturned and that it bars the mailing of medication abortion pills.
Biden’s Department of Justice issued a 2022 memo determining that the Comstock Act only applies if the sender intends medication abortion pills to be used unlawfully. Vice President-elect JD Vance as a senator persuaded 40 other Republican members of Congress to demand that Attorney General Merrick Garland withdraw this memo because it “twisted the plain meaning of [Comstock] in an effort to promote the taking of unborn life.” Vance and other signers wrote that the DOJ is required “to enforce it [Comstock Act] above the abortion industry’s dangerous and deadly political agenda.”
Trump has nominated Pam Bondi, the former Florida attorney general who vigorously defended the state’s anti-abortion laws, for U.S. attorney general. Bondi would be empowered to rescind the DOJ memo on the Comstock Act and issue one declaring it a good law. She has defended mandatory waiting periods and parental consent requirements. She heads the legal division of the American First Policy Institute, which has described itself as “the other Project 2025.”
At her nomination hearing this week, Bondi refused to commit to defending the DOJ’s stance on mifepristone. She testified: “I am personally pro-life. I have always been pro-life.” She would not answer questions about whether she would promote federal abortion restrictions. When Sen. Josh Hawley asked her, “Will you protect churches and pregnancy care centers when they are targeted for violence when they are targeted for intimidation?” she replied, “Yes, senator.” When Hawley asked if she would “stop the deliberate persecution of pro-life Americans for nothing more than their pro-life beliefs,” she again responded, “Yes, senator.”
“Project 2025’s road map argues that a Republican Justice Department should enforce Comstock ‘against providers and distributors’ of abortion pills,” writes Professor Ziegler. “A Trump administration could follow through on these plans by prosecuting doctors and drug companies anywhere in the country: The Comstock Act, as a federal law, could be read to override state protections for abortion rights.”
Extremist Jonathan Mitchell, architect of Texas’ six-week vigilante abortion law, has long contended: “We don’t need a federal ban when we have Comstock on the books.” Extremists argue the Comstock Act could be interpreted not only to ban medication pills, but distribution of anything shipped to abortion clinics, thereby shuttering them.
Sure, a majority of Americans favor legal abortion in most cases. But as Ziegler chillingly points out, “Pleasing the social conservatives who donate to his political organizations — the sort of people who could be key to securing his post-presidential future — may strike him as more important than pleasing the majority of American voters. Anti-abortion groups expect Mr. Trump to deliver if he is reelected and view his current reluctance to discuss abortion as a short-term political necessity.”
The Freedom From Religion Foundation agrees.
“Reproductive rights have never been more endangered,” says Annie Laurie Gaylor, FFRF co-president. “This is a pure religious crusade intent on legislating a religious definition of life at the expense of the rights, health, lives and wishes of American women of varied religions and no religion at all.”
The Freedom From Religion Foundation is a national nonprofit organization with over 40,000 members, working to promote the constitutional principle of separation of state and church and to educate the public on matters relating to nontheism.
