Even though the Supreme Court is unanimous dismissive After an attack on abortion pills this week, pro-choice advocates are warning against labeling the decision as a victory — and for good reason.
The ruling dismissed the anti-abortion plaintiffs summarily, and not on the merits of the case, which simply maintains the status quo of abortion access in the US. The decision provides no additional protection for mifepristone, the abortion drug at the center of the case, and leaves the door wide open for continued attacks.
There are a few ways Donald Trump could bypass the courts and Congress to ban mifepristone nationwide if he becomes president in November. Trump’s anti-abortion allies have outlined the presumptive Republican presidential nominee’s second-term agenda. Project 2025, a wish list of extreme policy proposals that would reform the federal government. There are at least three ways Trump could 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 brutality he has already caused nationwide, even in states where abortion is currently legal,” Julie Chavez Rodriguez, the Biden-Harris campaign manager, told reporters in a call Thursday.
Trump’s second-term agenda threatens women in all fifty 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 is 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 for mifepristone. Mifepristone is prescribed as part of a two-drug regimen, in addition to misoprostol, to treat abortion and miscarriages – which together are used in more than 60% of abortions in the US. 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 remove mifepristone from circulation, effectively implementing an abortion ban in both red and blue states. The recall of mifepristone would have devastating consequences for abortion care in the US, as well as for care for other medical conditions treated with mifepristone, such as Cushing syndrome and hyperglycemia.
The other proposal outlined in Project 2025 involves enforcement the Comstock Act, a 150-year-old law that criminalizes sending “obscene” material by mail, including anything “intended to procure an abortion.” About 20 states introduced abortion bans after the Supreme Court struck down Roe v. Wade in 2022, forcing some pregnant people to leave the state to get care or else continue with an unwanted or unsafe pregnancy.
But the abortion rates are generally the same has remained the same largely because people can still receive abortion pills in the mail. The Comstock Act bans the mailing of pills to any state in the country, creating an overnight backdoor ban on abortion.
The Comstock Act is a dangerous weapon for anti-abortion groups, and they know it. Jonathan Mitchell, a lawyer representing Trump in his own Supreme Court case, has said Republicans don’t need a nationwide abortion ban because the Comstock Act exists.
“We don’t need a federal ban if we have Comstock on the books,” Mitchell told The New York Times in February. Mitchell is also the architect of Texas’ abortion bounty hunter law, which banned abortion in the state more than a year before Roe v. Wade was repealed.
About Trump, he added: “I hope he doesn’t know about Comstock’s existence because I just don’t want him to spout off. I think the pro-life groups should keep their mouths shut as much as possible until the elections.”
Awareness of the Comstock Act is alarmingly low: Two in three Americans are unaware of the Comstock Act and its implications, according to recent poll from Navigator Research and Global Strategy Group. Seven in 10 Americans opposed enforcing the law after hearing about it.
“The way these anti-abortion extremists want to abuse the Comstock Act is completely wrong from a legal perspective,” Julia Kaye, senior staff attorney at the ACLU’s Reproductive Freedom Project, told reporters at a press conference on Thursday. “They defy the consensus of the federal appeals court, the US 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. The lawsuits will likely continue because the case has not been dismissed but has been remanded to Judge Matthew Kacsmaryk’s courtroom.
Kacsmaryk is far right Trump appointed, known for his anti-abortion viewsWHO ruled last year that the FDA unlawfully approved mifepristone in 2000. After the Supreme Court heard the case, Kacsmaryk allowed attorneys general from Idaho, Kansas and Missouri to be added as plaintiffs. Those officials did that suggested they will continue to litigate the case — either by moving forward in Kacsmaryk’s courtroom in Amarillo or by filing copycat lawsuits in other federal district courts.
The lawsuit before the Supreme Court should not proceed in Amarillo based on legal precedent, Kaye said. But if it makes progress in Amarillo or through copycat lawsuits, a Trump Justice Department could stop defending the FDA and its evidence-based mifepristone regulations.
Mitchell, the lawyer who is committed to 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 abortions across the country will absolutely continue, despite the relief of today’s decision,” Kaye said.
