Despite the Supreme Court unanimously rejecting an attack on abortion pills this week, pro-choice advocates are cautioning against calling the decision a win — and for good reason.
The ruling rejected the anti-abortion plaintiffs on standing, not on the merits of the case, which simply maintains the status quo of abortion access in the U.S. The decision does not offer additional protections to mifepristone, the abortion drug at the center of the case, and the door is wide open for continued attacks.
There are a few ways Donald Trump could circumvent the courts and Congress to ban mifepristone across the country if he wins the presidency in November. Trump’s anti-abortion allies have outlined the presumptive GOP presidential nominee’s second-term agenda in Project 2025, a wish list of extreme policy proposals that would reshape the federal government. There are at least three ways Trump can use executive action to ban abortion nationwide, including in states where abortion care is currently protected.
“He has a literal blueprint to expand the chaos and cruelty he’s already created nationwide, even in states where abortion is currently legal,” Julie Chavez Rodriguez, the Biden-Harris campaign manager, told reporters in a call on Thursday.
“Trump’s second-term agenda threatens women in all 50 states.”
– Julie Chavez Rodriguez, Biden-Harris campaign
“Donald Trump’s anti-reproductive freedom agenda is not just a threat to red states,” she continued. “Trump’s second-term agenda threatens women in all 50 states, and it’s extremely dangerous for women’s health care and our families.”
As president, Trump could replace the commissioner of the Food and Drug Administration and direct them to revoke the agency’s approval of mifepristone. Mifepristone is prescribed as part of a two-drug regimen alongside misoprostol for abortion and miscarriage care — which together are used in more than 60% of abortions in the U.S. The drug was approved by the FDA in 2000 and has since been used safely and effectively by nearly 6 million Americans, according to the agency.
Trump’s ability to appoint a new FDA commissioner would take mifepristone out of circulation, effectively implementing an abortion ban in both red and blue states. Recalling mifepristone would have devastating effects on abortion care in the U.S., as well as care for other medical conditions that are treated with mifepristone, like Cushing syndrome and hyperglycemia.
The other proposal outlined in Project 2025 includes enforcing the Comstock Act, a 150-year-old law that criminalizes sending “obscene” materials in the mail, including anything “intended for producing abortion.” Around 20 states enacted abortion bans after the Supreme Court repealed Roe v. Wade in 2022 – forcing some pregnant people to travel out of state to get care, or else continue with an unwanted or unsafe pregnancy.
But abortion rates have generally stayed the same in large part because people can still access abortion pills by mail. The Comstock Act would prohibit sending pills by mail to any state in the country, creating a backdoor abortion ban overnight.
The Comstock Act is a dangerous weapon for anti-abortion groups, and they know it. Jonathan Mitchell, an attorney representing Trump in his own case before the Supreme Court, has said that Republicans don’t need a nationwide abortion ban because the Comstock Act exists.
“We don’t need a federal ban when we have Comstock on the books,” Mitchell told The New York Times in February. Mitchell is also the architect of the Texas abortion bounty hunter law, which banned abortion in the state over a year before Roe v. Wade was repealed.
He added about Trump: “I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth. I think the pro-life groups should keep their mouths shut as much as possible until the election.”
Justin Sullivan via Getty Images
Awareness of the Comstock Act is alarmingly low: Two in three Americans do not know about the Comstock Act and its implications, according to recent polling from Navigator Research and Global Strategy Group. Seven in 10 Americans opposed the enforcement of the law after learning about it.
“The way that these anti-abortion extremists want to misuse the Comstock Act is entirely wrong from a legal perspective,” Julia Kaye, senior staff attorney at the ACLU’s Reproductive Freedom Project, told reporters during a Thursday press call. “They are defying the consensus of the federal appellate court, the U.S. Postal Service, Congress and the Department of Justice.”
The third way Trump could ban abortion nationwide comes back to this week’s Supreme Court case. There will likely be continued litigation because the case was not dismissed but remanded back to Judge Matthew Kacsmaryk’s courtroom.
Kacsmaryk is the far-right Trump appointee, well-known for his anti-abortion views, who ruled last year that the FDA unlawfully approved mifepristone in 2000. After the Supreme Court took the case, Kacsmaryk allowed attorneys general from Idaho, Kansas and Missouri to be added as plaintiffs. Those officials have suggested they will continue litigating the case — either by continuing in Kacsmaryk’s Amarillo courtroom or by filing copycat lawsuits in other federal district courts.
The lawsuit that was in front of the Supreme Court should not be allowed to continue in Amarillo based on legal precedent, Kaye said. But if it does move forward in Amarillo or through copycat suits, a Trump Justice Department could stop defending the FDA and its evidence-based mifepristone regulations.
Mitchell, the attorney betting on enforcing the Comstock Act, is reportedly on Trump’s short list for attorney general.
“The bottom line is that these attacks on medication abortion and on all abortion nationwide are absolutely going to continue despite the relief of today’s decision,” Kaye said.