Emboldened anti-abortion groups create wishlist for second Trump term

The anti-abortion movement is ready for its comeback in 2025.

With the return of Donald Trump to the White House, complete with a Republican-dominated Congress, anti-abortion groups are unfurling ambitious lists of policies they hope to see enacted under a sympathetic administration.

In the two years since the US supreme court overturned Roe v Wade, the movement has largely been relegated to playing defense. Popular support of abortion rights surged, while red-state voters defended abortion rights through ballot measures and many Republicans downplayed their opposition to the procedure.

Now, they are ready to go back on the offense.

Earlier this week, the powerful Students for Life of America released its wishlist of federal legislation, entitled “Make America Pro-Life Again”, which takes direct aim at access to abortion pills. The group is backing federal bills that would ban abortion pills entirely, outlaw telehealth abortions and require medical-grade cleanup of the pregnancy remains left behind by medication abortions. (Students for Life argues that the pills pose a threat to the US water supply because people may pass the remains of their pregnancy into the toilet.) Currently, abortion pills account for roughly two-thirds of US abortions.

Kristan Hawkins with Students for Life holds up a copy of the New York Times front page as she speaks during a rally on 24 June 2023 in Washington DC. Photograph: Anna Moneymaker/Getty Images

“There’s going to be a willingness to listen, there’s going to be a willingness to have conversation,” Kristan Hawkins, president of Students for Life, said of the incoming Trump administration.

On the campaign trail, Trump was far from a loyal ally to the anti-abortion movement. Although he bragged that he was the “most pro-life president” ever and took credit for Roe’s demise – having appointed three of the justices that overturned it – he also repeatedly insisted that abortion was now a matter for states to decide. Trump also flip-flopped on whether he would veto a national abortion ban passed by Congress.

But he wouldn’t necessarily have to. In an interview with the Guardian, Hawkins said she believed the Trump administration should enforce the Comstock Act – which may be the easiest way for a Trump administration to effectively implement a nationwide abortion ban.

A 19th-century anti-vice law that bans the mailing of abortion-related materials, the Comstock Act was dormant while Roe v Wade was the law of the land, but has never been fully repealed. It could be used to ban the mailing of abortion pills, as proposed by Project 2025, the controversial playbook of conservative policies assembled by the thinktank the Heritage Foundation. In the second quarter of 2024, providers performed more than 57,000 abortions through mail-order prescriptions, according to data from #WeCount, a project to track post-Roe abortions by the Society of Family Planning.

But other abortion opponents think the law can be used to stop abortion clinics from obtaining all of the materials they need to do their jobs.

Joe Biden’s Department of Justice has issued guidance that offers a more lax interpretation of the Comstock Act. But a Trump justice department, led by Matt Gaetz, could easily rescind that guidance without involving Congress. Gaetz’s record on abortion has earned him an A+ from the powerful anti-abortion group Susan B Anthony Pro-Life America.

“The letter of the law should be followed,” Hawkins said. Pointing to Trump’s proposals on immigration, she said: “The incoming Trump administration has been very clear that laws in our country are there for a reason, and laws should be upheld.”

She added: “We are going to be a country of law and order.”

In a statement, Susan B Anthony Pro-Life America’s president, Marjorie Dannenfelser, seemed to echo the point. “The commonsense policies of Pres Trump’s first term become the baseline for the second, along with reversing the Biden-Harris administration’s unprecedented violation of longstanding federal laws,” she said.

Dannenfelser’s statement also included a laundry list of policies that she would like to see implemented, many of which would involve redirecting federal funds. For example, she called for Trump to reinstate a rule that would reshape the nation’s oldest family planning program, Title X, which helps people obtain services such as contraception and STI screenings at little to no cost. Most people who rely on Title X are women and have incomes that are below or around the poverty level.

Although a longstanding rule known as the Hyde amendment already blocks federal dollars from funding abortions, the Trump administration also implemented a rule that blocked Title X-funded family planning providers from mentioning the word abortion and required them to physically separate any services that involve abortion from those that don’t, such as by creating entirely separate waiting rooms, examination rooms and office entrances solely for abortion provision.

Rather than comply, about 1,200 family planning clinics – including every clinic run by Planned Parenthood, the anti-abortion movement’s greatest antagonist – left Title X. More than 1.5 million people are thought to have lost access to Title X services as a direct result of the Trump administration’s changes.

In a strategy memo issued earlier this week and shared with the Guardian, Dannenfelser indicated that her group would work to lay the groundwork for “fetal personhood”, a legal doctrine that would grant embyros and fetuses full legal rights and protections.

“In order to go on offense and truly defeat the abortion industry in the long term, we must strengthen the pro-life, pro-woman, pro-family resolve of the Republican Party, centered on the unalienable right to life for the unborn child that exists under the 14th Amendment,” Dannenfelser said in the memo.

Some abortion foes cite the 14th amendment as the legal foundation for fetal personhood. If fully enacted, it would not only ban abortion entirely but rewrite vast swaths of US law, such as by outlawing in vitro fertilization as it is currently practiced. Alabama offered a sneak peek at what this may look like when the state supreme court ruled earlier this year that embryos created through IVF are “extrauterine children”. The ruling temporarily threw fertility services in the state into chaos.

A fresh mandate

There are other ways that anti-abortion activists may strike at abortion pills in the coming months. Earlier this year, the US supreme court rejected a lawsuit, argued by the Christian legal powerhouse Alliance Defending Freedom, that aimed to roll back the FDA’s approval of mifepristone, the common abortion pill. That rejection, however, was based on technical grounds. Three states – Idaho, Kansas and Missouri – are now attempting to resurrect the case. The Republican attorneys general of those states have filed a new complaint that repeatedly cites the Comstock Act and pushes for new restrictions, such as limits on minors’ access to the abortion pill.

But Project 2025 suggested another workaround: what if, under a conservative administration, the FDA reversed its own approval of mifepristone? Such a move could make it much harder to obtain the pill in the United States. The FDA could also roll back later measures that have made the medication more accessible without reversing course on its approval entirely.

Hawkins enthusiastically endorsed that course of action. The key, she said, may lie in the 2024 supreme court case Loper Bright Enterprises v Raimondo. In that case, the court’s conservative supermajority struck down the 40-year-old Chevron doctrine, which required courts to defer to federal agencies’ expertise.

“The supreme court confirms what we knew all along: federal agencies are not God,” Hawkins said. “They do not get the power to create their own regulations and enforce their own laws.”

In their own post-election statements, Alliance Defending Freedom affirmed their commitment to “dismantling the administrative state”.

The election ultimately proved to be a mixed bag for abortion rights: despite Trump’s victory, voters in seven states passed ballot measures to amend their state constitutions to protect abortion rights. In Arizona and Nevada – both of which Trump won – those measures passed with a whopping 60-plus per cent of the vote.

Still, Hawkins feels like the 2024 election issued a clear mandate to her movement and the US government.

“Americans want less abortion. They don’t want more,” Hawkins said. “No matter what type of color lipstick you want to put on this pig, you’re still talking about abortion.”