Abortion, the issue thought to be the magic bullet that would mortally wound Donald Trump’s chances at a second presidency, instead failed to stop him on Tuesday. Now, two years after a conservative supermajority on the US supreme court ended federal protections for the procedure, the future of American abortion access is facing a new chapter of extraordinary peril.
While seven states passed ballot measures to amend their state constitutions and protect abortion rights, Trump’s return to the White House means those hard-fought efforts may amount to nothing. Despite the gridlock in US Congress, a nationwide abortion ban could soon become a reality: anti-abortion advocates hope that Trump will resurrect a 19th-century anti-vice law to effectively implement a nationwide ban. Access to other forms of reproductive healthcare, such as contraception and in vitro fertilization, are also at risk.
Because he’s barred from a third term Trump can now do whatever he wants without fear of electoral consequences, said Mary Ziegler, a professor at the University of California, Davis who studies the legal history of reproduction.
“He’s playing with house money,” Ziegler said. “He can do whatever he’s going to do without fear of conservative Christian voters, without fear of swing voters, without fear of anybody. And he doesn’t have Roe v Wade and he has a conservative supreme court, so that means he could do really aggressive things to limit abortion or IVF – or not. We don’t know.”
In the two years since the high court overturned Roe, abortion became an issue that seemed to spell electoral promise for the Democrats. Before Tuesday, abortion rights advocates had triumphed in all seven states that held related ballot measures. Public support surged, including in red states.
But the outrage and activism did not translate into enough votes for Harris, who made defending abortion rights a bedrock of her campaign.
Nor did Tuesday’s abortion-related ballot measures necessarily boost Democratic turnout in critical swing states such as Arizona and Nevada. Instead, exit polling by CNN indicates that almost half of people who believe abortion should be legal in most cases voted for Trump – the man who appointed three of the supreme court justices who voted to overturn Roe and whose party spent decades dedicated to its downfall. Harris’s support among women also fell. Compared to Hillary Clinton, who won with female voters by 13 points in 2016, and Joe Biden, who won with them by 15 in 2020, Harris won with female voters only by 10 points.
Trump has recently backtracked on his anti-abortion position – he recently claimed he would be “great for women and their reproductive rights” – as public support for the procedure has mounted, and it appears that some voters bought it. “Most Trump voters don’t think he’s going to restrict abortion anymore,” said Tresa Undem, a pollster who has been surveying voters on abortion. Part of the issue, Undem said, is that Republicans are not hearing about the impacts of bans, which are reportedly responsible for at least four deaths.
Whatever the reason, the abortion bans now dotting the US map just did not seem to cost Republicans at the polls – a fact the right could view as an invitation to pursue a wave of new restrictions at the national level.
‘Outsourcing to people who care more’
Now, abortion access in the United States will largely depend on who Trump hires into his administration.
“Historically, even in his first administration, reproductive issues were not the thing that got him out of bed in the morning,” Ziegler said of Trump. “And so a lot of the policy was outsourced to people who cared more than he did.”
Project 2025, which was primarily crafted by the influential thinktank the Heritage Foundation but backed by more than 100 conservative groups, includes a laundry list of anti-abortion policies. It suggests rolling back the FDA’s approval of abortion pills, increasing CDC “surveillance” of abortion and pregnancy loss to police ban violations, and stripping federal funding from family planning providers who mention the word “abortion”. That last proposal may also severely curtail access to family planning services, including contraception and STI testing, for low-income people.
Project 2025 also proposes using the Comstock Act, an 1873 anti-vice law that went dormant when Roe was law, to outlaw the mailing of abortion pills, which account for about two-thirds of US abortions. Other anti-abortion activists say the Comstock Act can go even further and ban the mailing of all abortion-related materials, including the equipment used by abortion clinics. Such an interpretation of the Comstock Act, which could easily be taken up by a Trump Department of Justice, would result in a de facto nationwide ban.
Deirdre Schifeling, the ACLU’s chief policy and advocacy officer, said that the organization is committed to fighting a revival of the Comstock Act. “We will fight with every tool that we have,” she said, “including litigation, including organizing, including people in the streets.”
