Trump allies plan sweeping restrictions
Allies of former President Donald Trump and officials who served in his administration are planning ways to restrict abortion rights if he returns to power that would go far beyond proposals for a national ban or the laws enacted in conservative states across the country.
Behind the scenes, specific anti-abortion plans being proposed by Trump's allies are sweeping and legally sophisticated. Some of their proposals would rely on enforcing the Comstock Act, a long-dormant law from 1873, to criminalize the shipping of any materials used in an abortion — including abortion pills, which account for the majority of abortions in America.
“We don't need a federal ban when we have Comstock on the books,” said Jonathan F. Mitchell, the legal force behind a 2021 Texas law that found a way to effectively ban abortion in the state before Roe v. Wade was overturned. “There's a smorgasbord of options.”
Mitchell, who represented Trump in arguments before the Supreme Court over whether the former president could appear on the ballot in Colorado, indicated that anti-abortion strategists had purposefully been quiet about their more advanced plans, given the political liability the issue has become for Republicans.
“I hope he doesn't know about the existence of Comstock, because I just don't want him to shoot off his mouth,” Mitchell said of Trump. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”
The New York Times reported Friday that Trump had told advisers and allies that he liked the idea of a 16-week national abortion ban but that he wanted to wait until the Republican primary contest was over to publicly discuss his views.
But among the people thinking most seriously about actual abortion policy should he win the election, very different plans are underway.
Trump's idea is not yet a concrete proposal, and the anti-abortion lawyers and strategists within his own orbit already have plans in the works that toughen abortion policies using other avenues. Policies under consideration include banning the use of fetal stem cells in medical research for diseases like cancer, rescinding approval of abortion pills at the FDA and stopping hundreds of millions in federal funding for Planned Parenthood.
Such an action against Planned Parenthood would cripple the nation's largest provider of women's health care, which is already struggling to provide abortions in the postRoe era.
The organizations and advocates crafting these proposals are not simply outside groups expressing wish lists of what they hope Trump would do in a second administration. They are people who have spent much of their professional careers fighting abortion rights, including some who were in powerful positions during Trump's administration.
In his first term, Trump largely outsourced abortion policy to socially conservative lawyers and aides. Since he left office, some of those people have remained in Trump's orbit, defending him in court, suggesting policy plans well beyond issues like abortion and attending events at Mar-a-Lago, his private club and residence in Florida.
Frank Pavone, an antiabortion activist whom Pope Francis removed from the priesthood for “blasphemous communication,” said he had discussed abortion policy at several poolside receptions at Mar-a-Lago.
“When I'm there at Mara-Lago,” he said, “I get strong affirmation from everyone I meet there for my work.”
Trump has not publicly addressed the extensive list of possible antiabortion executive actions or the enforcement of the Comstock Act. Yet, Trump's official blessing may not matter if his former aides and their networks are returned to key positions in the federal bureaucracy.
“The question will then become what can be done unilaterally at the executive branch level, and the answer is quite a bit,” Mitchell said. “But to the extent to which that's done will depend on whether the president wants to take the political heat and whether the attorney general or the secretary of Health and Human Services are on board.”