Trump threatens state social protections

The specter of a second Donald Trump presidency has transgender individuals preparing their passports, and abortionrights supporters worried about an obscure postal obscenity ban.

Even California, a selfdeclared haven for people affected by out-of-state legislation attacking transgender rights and abortion access, may not be able to provide robust protections if Trump is reelected and carries through on promises he’s made in this campaign and his previous four years in office.

“We’re worried we may have to leave the country,” said Ebony Harper, executive director of California TRANScends, a transgender advocacy group in Sacramento. “They’re going to come for trans folks. And they’re going to try to punish people who help trans folks — even doctors, social workers, teachers. And they’re going to try to do it from a federal level.”

Project 2025’s threat

Experts in transgender and abortion rights — two areas where California has positioned itself as a critical backstop to the national conservative agenda — say that a second Trump term could yield policies that make it much more difficult for liberal states to provide sanctuary.

They noted that if Trump wins again, he’d be coming into office with more experience and a better understanding of how to put in place policies that will stand up to legal challenges.

“The processes that were used to issue rule changes before were sloppy and arrogant,” said Jennifer

Pizer, chief legal officer for Lambda Legal, an LGBTQ advocacy group. “There appears to be an organized, well-funded, very aggressive effort to accomplish more (in a second term) than what was done last time. And that is profoundly alarming.”

Pizer referred to Project 2025, a collection of Republican policy proposals written by nearly two dozen Trump administration officials and advisers, as evidence of the aggressive plans the former president has for a second term. Gov. Gavin Newsom, who is working to “Trumpproof” California by enacting laws to thwart efforts from a potential second presidency, told the Atlantic that he keeps a marked-up copy of Project 2025 in his office.

The Project 2025 health care blueprint was written by Roger Severino, who led the Health and Human Services Department’s civil rights office during the Trump administration. Severino ended nondiscrimination protections for LGBTQ people and increased enforcement of religious conscience protections, including for people who object to providing abortions. The Biden administration has reversed those changes.

California has positioned itself as a haven for people seeking abortions since the U.S. Supreme Court overturned Roe v. Wade in 2022. Since then, 28 states have severely curtailed abortion access, according to the Guttmacher Institute, a research organization that tracks reproductive laws and policies in the U.S. In California, voters enshrined the right to abortion in the state Constitution last year, and Newsom has signed 24 abortion-protection-related bills into law over the past two years.

California similarly declared itself a sanctuary for transgender people in 2022, as other states began stripping civil rights protections or proposing legislation that would limit their access to care; specifically, the policy allows families with trans youth from other states to get care in California. Twenty-four states have passed laws that limit access to gender-affirming care for transgender youth, which generally includes hormones or drugs to prevent puberty.

Attacks on transgender and other LGBTQ people also have come in the form of book bans and legislation that forbids trans students from using certain bathrooms or playing sports. California’s attorney general has gone to court to challenge school district policies requiring educators to out transgender students to their parents, and Newsom signed into law new protections limiting book censorship in schools.

Abortion access

The biggest prospective threat to abortion access in California is an obscure 1873 law that could be used to prohibit the mailing of drugs used for abortions, legal experts said. The Project 2025 blueprint includes the use of this law to stop medication abortions.

The Comstock Act has been getting increased attention from conservatives as a potential tool to enact a national abortion ban without requiring congressional action, said Mary Ziegler, a professor of law at UC Davis and leading scholar on abortion rights. Supreme Court Justices Samuel Alito and Clarence Thomas repeatedly brought up Comstock during arguments over access to mifepristone. Preventing abortion pills from being shipped would impact California residents, people who wanted to travel to California and potentially doctors willing to send the medication into red states, said Greer Donley, a professor of law at the University of Pittsburgh focused on abortion rights.

The law could also be more broadly interpreted to “stop the shipment of anything used for an abortion,” including tools used to perform a surgical abortion, Donley said.

Some Democratic lawmakers have floated repealing Comstock, but it’s unlikely such a proposal could pass. Reproductive rights groups involved in challenging abortion restrictions — Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union — have, however, reportedly discouraged Democrats from introducing legislation to address Comstock, arguing that it could impact ongoing litigation.

California and other states would likely challenge the Comstock Act’s constitutionality if the federal government broadened enforcement. They could also try creative maneuvers to legally transport medication abortion, Ziegler said, like using private or state vehicles that aren’t common carriers.

While Trump’s former top advisers are calling for enforcement of the Comstock Act and targeting mifepristone, the pill used in more than half of all abortions, Trump’s position has been tougher to pin down. He has touted his role in placing conservative justices on the court that overturned Roe v. Wade, called on April 8 for the decision to be left to the states — falsely claiming that “we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation, or perhaps both, and whatever they decide must be the law of the land” — then telling reporters on April 10 that the Arizona Supreme Court went too far in ruling that the state should follow an 1864 abortion ban and that the decision should be left to the legislature (which so far has resisted moves to overturn the law).

Conservatives are waiting on the Supreme Court to decide whether it will limit access to mifepristone.

Nearly two-thirds of abortions in the U.S. are by medication, and of those, almost all are administered using both misoprostol and mifepristone. In the two-drug abortion protocol, mifepristone is taken to halt a pregnancy and misoprostol is taken later to cause the uterus to expel the pregnancy tissue.

If the Supreme Court declines to limit use of the drug, the Food and Drug Administration could still withdraw the approval of mifepristone or reinstate the requirement that abortion-seekers see a doctor in person to receive a medication abortion.

Even if mifepristone use is restricted, misoprostolonly abortions could still be done. Misoprostol has other uses, including to induce labor and prevent ulcers, and is less likely to have its use restricted, Donley said.

Doctors say misoprostol-only abortions are safe, but can come with more side effects, including more pain.

The conservative policy blueprint for a second Trump administration also suggested withdrawing up to 10% of Medicaid funding from states that require insurance companies to cover abortion. California, which received about $81 billion from the federal government for its Medicaid program in 2022, was set to lose $200 million because of a provision requiring insurance coverage of abortions, but the Biden administration restored that funding. Severino also suggested that states like California that “discriminate” against pharmacies that don’t carry medication abortion outside of California should face similar penalties.

“People are right to focus on the doom-andgloom scenarios when it comes to what the Trump administration might do,” said Nicholas Bagley, a health law professor at the University of Michigan and former chief legal counsel to Michigan Gov. Gretchen Whitmer. But “I don’t think we can take it as an inevitability, in part because the politics have shifted so quickly, and (abortion) is such an enormous vulnerability for Republicans,” he said.

Trans protections

One of Trump’s earliest policy efforts, in his first year in office in 2017, was banning transgender people from the military — a plan he announced via a series of posts on what was then called Twitter. Biden rescinded the policy in 2021.

Seven years later, the candidate Trump reignited his anti-trans stances, and he’s made revoking or limiting access to genderaffirming care a central point of his 2024 campaign.

“We will defeat the cult of gender ideology to reassert that God created two genders, male and female,” Trump said at a rally in Texas in January.

Experts say it likely would be difficult for Trump to put in place a full federal ban on genderaffirming care, but he could make it more difficult for everyone to access. And they worry too about more subtle but insidious gestures he could make, such as no longer enforcing laws that protect transgender people.

“I would not be surprised if express protections (for transgender people) are removed, and if federal agencies are instructed to roll back protections,” said Joseph Wardenski, a New York civil rights attorney who focuses on LGBTQ equity. “At the very least I think there would be no federal enforcement of existing protections on behalf of LGBTQ people, and especially trans people.”

California has “robust” civil rights protections of its own, “so that would serve as a backstop to some of the worst retrenchment we might see at the federal level,” Wardenski said. “But states are not positioned to do everything. All of these enforcement agencies are overburdened. Even in the best of times, it’s a slow path to having your civil rights protected.”

Other experts in transgender rights worried that federal funding could indirectly impact access to care and other resources. For example, if a Trump administration ordered that hospitals that receive federal funding must allow staff to opt out of providing care they are opposed to — such as hormone therapy for a transgender woman — that could cause dilemmas even in California.

“There’s a lot that can be done through attaching strings to public funding that could be pretty scary,” said Peter Romer-Friedman, a civil-rights attorney based in Washington, D.C. “You could end up denying people care.”

Aside from the actual laws or policies a second Trump administration might put into effect, LGBTQ advocates also are bracing for worsening national anti-trans rhetoric that’s already created hostile and sometimes violent environments for transgender people in many communities, including in California.

“The word ‘toxic’ is overused, but that’s the situation we have,” said Pizer, the Lambda Legal representative. “The specter of this level of aggressive targeting and cruelty and ignorance at the federal level is truly alarming. The situation is unconscionable now, and it can get worse.”