Trump’s hands-off abortion stance faces political reality

President-elect Trump campaigned on leaving abortion decisions to the states, but that could prove a tough promise to keep as he returns to the Oval Office.

Anti-abortion groups want Trump to quickly take executive action to re-impose federal restrictions from his first term; Republicans in Congress are poised to send him new abortion legislation; and his Justice Department will need to decide whether to continue defending Biden-era abortion policies across several ongoing federal cases or drop them completely.

Some of these actions could empower states trying to restrict abortion, making it even more difficult for women to access abortion care, but others could impose new federal roadblocks on states seeking to expand reproductive rights.

“You could have versions of the story where the Trump administration doesn't really take aggressive action on abortion and does things that look more like reversing Biden-era policies and restoring Trump-era policies,” said Mary Ziegler, an abortion law expert and professor at the University of California Davis.

“And there's a scenario where a second Trump administration goes much, much further on abortion, in court and outside of it. And we don't really know which of those realities is going to be the one we see, in part because as much as Trump has been telegraphing his plans for returning to office, he hasn't really been particularly eager to talk about reproductive issues,” Ziegler added.

Advocates on either side of the issue don’t expect the Trump administration to stay out of the fight.

“Until taxpayers no longer pay for abortion and programs no longer mandate it, abortion is federal,” said Kristan Hawkins, president Students for Life Action, an anti-abortion group.

“The Dobbs decision makes it easier for the states to engage, and we welcome that, but that didn't shift the responsibility away from the federal government.”

Nancy Northup, president and CEO at the Center for Reproductive Rights, said in a statement her organization was anticipating “even more extreme actions” from the Trump administration than his first term, including attempts to make it much harder to access medication abortion, or to completely rescind approval for the drugs.

“We will be in court every day for the next four years, if that's what it takes,” Northup said.

In Congress, the Republican-controlled House and Senate have big plans for passing anti-abortion legislation and sending it to Trump's desk.

First on the list is a measure that would mandate health care providers try to preserve the life of an infant in the rare case that a baby is born after a failed abortion.

The bill was panned by reproductive medical experts and Democrats for interfering with complex medical decisions between patients and their physicians.

Republicans passed it in the House last year, but it was blocked in the Democrat-controlled Senate. With a three-seat GOP advantage this time, it’s possible the bill could move forward, with the expectation that Trump would sign it.

Similarly, House and Senate Republicans may find an easier path to including abortion restrictions in government spending and must-pass policy bills.

It was a strategy House Republicans tried last year, as they attempted to restrict the military’s reimbursement for abortion-related travel, reverse the ability of Department of Veterans Affairs hospitals to provide abortions, and change how the abortion drug mifepristone was dispensed.

The anti-abortion provisions and amendments never made it past the Democratic Senate, but this year could be different.

On the legal front, Trump will inherit lawsuits that could help determine access to abortion for millions of women, with voters having little say.

In many instances the cases are being argued in front of judges appointed by Trump in his first term.

The stakes were made clear on Thursday, when a Trump-appointed federal judge in Texas allowed a trio of red states to sue the Food and Drug Administration over its actions to expand access to mifepristone, one of two pills used in medication abortion.

U.S. District Judge Matthew Kacsmaryk said Idaho, Missouri and Kansas have legal standing to bring a case to Amarillo, Texas.

Last year, the Supreme Court dismissed an earlier version of the lawsuit, saying that private parties had no legal basis to challenge access to mifepristone. But Kacsmaryk kept the case alive by allowing the red states to intervene.

Trump’s attorney general nominee Pam Bondi did not directly answer when asked by Sen. Cory Booker (D-N.J.) at her confirmation hearing whether she would commit to defending the FDA’s actions in the case, saying she needed to do more research. Bondi vowed not to let her personal anti-abortion views influence her actions.

The FDA has repeatedly found that mifepristone is safe and that a medication abortion regimen that includes mifepristone and a second drug, misoprostol, is a safe and effective alternative to surgical abortions.

Advocates expect the administration to stop defending the case and make regulatory changes, but it could be politically unpopular.

"I think that lawsuit will potentially be uncomfortable for the Trump administration, because Trump has been sidestepping questions about exactly what he wants HHS and FDA to do about mifepristone what exactly he wants DOJ to do about mifepristone. And the lawsuit before Judge Kacsmaryk raises a lot of those questions,” Ziegler said.

But Eric Kniffin, a fellow at the Ethics and Public Policy Center and expert on religious liberty, said the Trump administration can be light-handed and still get credit from conservatives.

"They could advance a lot of pro-life policies. They don't have to advance a pro-life federal law. They just have to stop the overreaches that this administration has been taking," Kniffin said.

"Just the Trump administration taking its foot off the gas would be a huge step forward in giving states that want to the opportunity to enact pro-life policies."

One of the first instances where that could happen involves a Biden administration lawsuit against Idaho.

The Biden Justice Department argued Idaho’s near-total abortion ban during medical emergencies violates federal emergency medical statute. The 9th Circuit Court of Appeals heard arguments last year, but hasn’t rendered a decision.

Most observers expect the Trump administration to drop the case, and revoke the Biden administration’s guidance telling hospitals they need to provide such care to qualify for federal funding.

Amy Williams Navarro, director of government relations at Reproductive Freedom for All, said in an email that Trump is stacking his Cabinet with “anti-abortion zealots” tied to the Heritage Foundation’s Project 2025, which calls for ending the lawsuit.

"Following Project 2025's mandate, we expect to see the DOJ swiftly withdraw all pending litigation against states that refuse to provide access to emergency abortion care in violation of federal law,” Williams Navarro said in a statement.

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