Watch CBS News

Trump says he wouldn't sign a federal abortion ban. Could he limit abortion access in other ways if reelected?

SCOTUS divided over Idaho abortion case
Supreme Court appears divided over Idaho emergency abortion case 04:43

Washington — When Donald Trump announced his position on abortion last month — pledging to leave the issue to the states — groups that oppose the procedure and had pushed him to back a federal ban were disappointed. 

"At the end of the day, this is all about the will of the people," Trump said. 

Indeed, his pledge follows what voters have generally reinforced at the ballot box since the Supreme Court overturned Roe v. Wade — that they oppose efforts to restrict access to abortion. His backers within anti-abortion groups have nonetheless urged him to publicly support a nationwide ban, at a minimum, on abortion beyond 15 weeks of pregnancy. 

But the former president might not need to risk alienating voters in the general election to appease abortion rights opponents in his base. Should Trump return to the Oval Office, some experts say his administration can significantly restrict abortion without ever imposing a federal ban. 

The plan for abortion under a new administration

A "presidential transition handbook" titled Project 2025, published by the Heritage Foundation includes directives aimed at multiple government agencies that could be enforced by a conservative president. 

The abortion section was written by Roger Severino, who led the Department of Health and Human Services Office for Civil Rights under Trump.  

Trump senior campaign advisers Susie Wiles and Chris LaCivita pushed back against the prospect of such restrictions in a second Trump term, saying in a statement that "unless a message is coming directly from President Trump or an authorized member of his campaign team, no aspect of future presidential staffing or policy announcements should be deemed official."

But without the ability — or political will — to pass new abortion limits through Congress, Trump may face pressure to take other action. And the outside plan outlines how an administration could rely on existing laws, interpreting them to dramatically alter access to abortion — focusing on a centuries-old law and abortion pills. 

Ending medication abortion

Medication abortions account for more than half of all abortions in the U.S. each year, making it a key avenue of access for women seeking an abortion and a target for opponents.

Project 2025 calls abortion pills "the single greatest threat to unborn children in a post-Roe world" and argues the Food and Drug Administration should reverse its approval of the drug at the center of the regimen.

Mifepristone, the first in a two-drug regimen used to terminate early-stage pregnancies, was approved by the FDA in 2000. That approval and subsequent moves to make the drug more accessible have been the source of intense pushback in recent years. The Supreme Court is considering a case this term concerning the rules around the drug's use.

Although the high court appears poised to reject a challenge to the drug's availability on procedural grounds, a new administration could take other action to curtail access to the medication. For instance, a new FDA chief could decide to review the agency's past actions, including the initial approval and more recent moves that have made mifepristone more widely available, like the ability to get it through the mail. Project 2025 outlines the move as an "interim step," while advocating for full reversal of the drug's approval. 

Trump said in an interview with Time Magazine that he has "pretty strong views" on the abortion pill that he plans to make public in the near future, along with his views on the implementation of a 19th century anti-obscenity law that could mark an even more substantial move to restrict abortion.

Using the Comstock Act to ban the abortion pill — and more

An 1873 law related to the shipping of materials deemed as "obscene, lewd, lascivious, indecent, filthy or vile" has become a primary focus of anti-abortion groups as a method to significantly restrict access to abortion — even without a new law. 

Because the Comstock Act remains on the books, those who oppose abortion see it as a method to almost immediately begin restricting access under a conservative administration.

Project 2025 argues that since the Supreme Court overturned Roe, there is no federal prohibition on enforcing the statute, saying the "next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills."

To do so, a Trump administration could appoint an attorney general who believes that the Comstock Act is not in disuse and should be enforced as it's written, says Rachel Rebouché, the dean of Temple University's Beasley School of Law. And she expects that an administration's Justice Department seeking to apply the Comstock Act could ban everything that is used in furtherance of an abortion — not just the mailing of abortion pills. 

"I think that a new administration could try to take action to put people in jail for mailing anything, but, you know, pills included, that assist in an abortion because the act is really broad," Rebouché said, adding that it could amount to a "defacto" abortion ban nationwide if it's applied in a broad sense.

Accordingly, the Comstock Act could offer a path forward for presidents to severely restrict access to abortion with some political cover or "plausible deniability," said Mary Ziegler, a historian and law professor at the University of California, Davis, because rather than signing a new abortion ban, they would be able to say they're "just enforcing the law."

But enforcing the Comstock Act, and chipping away at abortion access isn't the movement's end game, Ziegler says.

"The Comstock Act is more of a short term strategy," she said. "Personhood is the long term goal."

The long fight for personhood

The topic of personhood — when human life begins — has been a widely debated philosophical question for centuries. But there's also been a separate legal argument over whether fetuses should be granted the same rights as any person under the law, often referred to as fetal personhood. 

Under Roe, the Supreme Court didn't weigh in on when life begins, instead opting to tie abortion access to the viability standard, that is, when a fetus could survive outside of the womb. And the justices didn't address this question directly in overturning Roe either, although Justice Samuel Alito, who wrote the majority opinion, mentioned it.

"Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth," Alito wrote, saying the liberals' dissenting opinion would impose a theory about when personhood rights begin that he argued the Constitution and legal tradition don't support. But he didn't appear to rule out an alternative theory for when personhood rights should begin.

"Unborn child" in federal law

The issue seemed to bubble up into recent arguments before the high court in a case pitting Idaho's near-total abortion ban against a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), that requires Medicare-participating hospitals to provide stabilizing treatment in medical emergencies.

During arguments last month, Alito honed in on EMTALA's use of the phrase "unborn child" in its definition of "emergency medical condition," which is one that places the health of the mother or her "unborn child" in serious jeopardy. Alito said "in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty."

Meghan Boone, a professor at Wake Forest School of Law who is an expert on reproductive rights, says Alito seemed to be arguing that "EMTALA itself reflected an equal duty to the pregnant person and to a fetus, such that it could not be read to ever allow for abortion because in allowing for abortion, you are necessarily undermining the health of the fetus." 

Under that interpretation, "the fetus has the trump card," she said, and "the only correct action is to accept whatever health consequences may come from letting that pregnancy continue as long as the fetus has a chance of survival."

Boone doesn't think the Supreme Court wants to rule on whether fetuses are people. But she suggested these arguments indicate the high court may be receptive to a Republican presidential administration's decision to treat fetuses as fully formed people under the law.

If fetuses are deemed to be people with legal rights, then abortion could be considered murder. 

In this way, fetal personhood could be an avenue to prohibit abortion nationwide without having to impose a standard abortion ban. And a recent court ruling in Alabama hinted at the stakes.

In vitro fertilization under fire

Earlier this year, the Alabama Supreme Court issued a ruling that suggested that embryos should have the same rights as children. In a decision stemming from a wrongful death lawsuit, the court determined that the frozen embryos stored for fertility treatments could be considered children under an Alabama law enacted in 1872, granting them protections that children are afforded.

Although the state legislature moved quickly to protect access to IVF amid intense backlash, the ruling has drawn attention to personhood laws elsewhere. According to a report from Pregnancy Justice, a pro-abortion rights group, at least 11 states have broad personhood language on the books, while at least five more states define personhood as including fetuses within their criminal code.

Rebouché said the Alabama ruling signals "there's a will to use both existing law and potentially to enact new law that confers legal rights on the unborn." But exactly what that would look like remains to be seen.

In late February, shortly after the Alabama ruling, Sen. Tammy Duckworth unsuccessfully tried to get legislation protecting access to IVF through the Senate. And it wasn't the first time. The Illinois Democrat had tried to get support for the bill in the months following Roe's reversal and had taken steps even before, recognizing that the movement would likely target IVF.

"I've been talking about this now for well over 10 years, but it really came out of my personal IVF experience talking to my doctor," Duckworth told CBS News.  

The Illinois Democrat said she first learned about the personhood push in part when she was going through IVF herself, when her doctor warned her as they were set to discard nonviable eggs that under the new personhood pushes under consideration throughout the country, the act could be potentially considered manslaughter or murder.

Democratic Rep. Lori Trahan of Massachusetts used IVF to conceive her two children and she said she expects access to the treatment to be a "huge factor" in the presidential race.

"I mean, this is going to be a huge issue as women go to the polls and not just women, people who want to start families, people who go to IVF clinics as their last hope to starting a family," she told CBS News. "This is going to be on your mind as they go to the ballot box." 

At the state level, Ziegler said she expects personhood pushes to continue. And she made clear that the "end game" is a Supreme Court decision to recognize personhood nationwide. But she noted that that's not expected to happen right away. 

Trump has not said whether he believes embryos are children but said he strongly supports IVF "for couples who are trying to have a precious baby." And though Trump says he opposes a nationwide abortion ban, Duckworth said the former president's actions tell a different story. 

"We can't stop Trump from lying," Duckworth said. "But when you look at his actions, it's clear that he's proud of these extreme abortion bans, he's proud of this personhood movement and so he's gonna say what he thinks he needs to say to try to get elected, but frankly, we all know Trump lies."

Duckworth's sentiment echoes Democrats across the country. President Biden has made abortion central to his reelection bid. Mr. Biden and Vice President Kamala Harris are representing themselves as defenders of abortion rights, which they say Trump and Republicans want to take away. 

But Trump's campaign says he's been "consistent and clear," that he will not sign a federal abortion ban and will leave decisions on abortion up to the states.

Wiles and LaCivita agreed, saying, "despite our being crystal clear, some 'allies' haven't gotten the hint, and the media, in their anti-Trump zeal, has been all-to-willing to continue using anonymous sourcing and speculation about a second Trump administration in an effort to prevent a second Trump administration."

Still, Ziegler said Trump has had a tendency to "outsource a lot of important questions to the anti-abortion movement."

"He'll bring in people to this administration and let them make the calls," she predicted.

At the end of his video statement, Trump told abortion opponents what it would take to "restore our culture."

"You must follow your heart on this issue. But remember, you must also win elections to restore our culture and in fact, to save our country," he said. "Always go by your heart. But we must win. We have to win."

View CBS News In
CBS News App Open
Chrome Safari Continue
Be the first to know
Get browser notifications for breaking news, live events, and exclusive reporting.