Trump says he’ll leave abortion to the states. It won’t be so simple

By Tierney Sneed, CNN

(CNN) — Despite his campaign promises to leave the issue to the states, President-elect Donald Trump’s administration will shape the national landscape around abortion and reproductive health.

Trump leaned into the abortion issue in the 2016 campaign and made good on his promises to appoint Supreme Court justices who would overturn Roe v. Wade, which protected the right to an abortion nationwide. However, the court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization prompted a political backlash that Trump has tried to sidestep, while opening new legal quandaries that his second administration will have no choice but to navigate.

Chief among them are two cases involving the federal government that have both already been up to the Supreme Court once and could well land before the justices again during Trump’s second term. One of them is a challenge to federal regulations that have made abortion pills easier to obtain. The second deals with whether an emergency room patient is entitled to an abortion — even in states that ban the procedure — if a pregnancy complication is putting her health in danger.

Trump will also face calls from anti-abortion activists to reverse Biden-era policies that shored up abortion access after the Dobbs decision and to perhaps go further to undermine the efforts by blue states to respond to Roe’s reversal. And his administration may also be forced to choose whether to pursue other changes, such as how the abortion drug mifepristone is regulated.

Asked by CNN about a dozen specific regulatory or legal decisions concerning national abortion policy that are facing the incoming Trump administration, a spokesperson for his transition said, “President Trump has long been consistent in supporting the rights of states to make decisions on abortion.”

The federal government, however, still plays a major role in shaping abortion policies — from approving the using abortion drugs and deciding how they can be obtained, to directing federal public health funding, to crafting agency rules that have sought to make the procedure easier to access in the wake of Roe’s reversal.

Abortion rights advocates are arguing that if Trump’s Justice Department refuses to continue the Biden administration’s defense of those federal policies, he would be using the courts to enact the nationwide cutbacks to abortion access that he claimed he wouldn’t pursue.

“Maybe Trump thinks he’ll face less backlash if he lets these nationwide attacks on abortion play out in court rather than in his agencies — but if Trump’s DOJ stops defending mifepristone in court, he’s reneging on his promise to voters just the same,” said Julia Kaye, a senior staff attorney with the ACLU Reproductive Freedom Project.

Those in the anti-abortion movement argue there are policy changes Trump can adopt that wouldn’t violate his campaign pledges. They’re calling for, at the least, the reversal of Biden-era moves and a return to certain anti-abortion policies pushed in his first term.

Eric Kniffin, a fellow at the Ethics and Public Policy Center, a think tank that advocates for socially conservative causes, framed such moves as giving states more flexibility to decide the abortion policies within their borders while reining in an administrative state that overreached in the Biden era.

“Back in April, President Trump made clear that he thinks abortion policy should be left to the states,” Kniffin said. “Given that commitment, and that these post-Dobbs regulations are likely unlawful, the incoming administration may well back off these aggressive agency actions and signal that ‘the federal government is going to take its thumb off of the scales.’”

The major abortion pill case that’s not going away

The case challenging the federal rules for the abortion pill mifepristone, part of a two-drug regimen to end a pregnancy, is moving forward in a federal court in Amarillo, Texas. Three GOP-led states are trying to keep the lawsuit alive after the Supreme Court said this summer that anti-abortion doctors and medical organizations didn’t have standing to sue over the regulations.

Missouri, Kansas and Idaho are asking the court to pull the generic version of mifepristone from the market and to reverse a Biden-era move that allows the pill to be obtained without an in-person doctor visit.

A question facing the Trump Justice Department is whether it will continue to defend in court the US Food and Drug Administration’s regulations for the drug. But because the mifepristone manufacturer Danco has intervened to defend the current rules, the case will continue no matter what posture the incoming administration takes.

In the past, the Justice Department has cited institutional concerns to resist switching positions in a case with a change of party control at the White House. But anti-abortion advocates are pointing to how the Biden DOJ reversed postures taken by the department under the first Trump term in cases dealing with abortion and transgender health care.

“It can’t be when President Trump is in power, all of a sudden, they care about institutional reputation, and we never change positions in court, but when Biden comes in, oh, of course, we’re going to change positions,” said Roger Severino, who is the vice president of domestic policy at the conservative Heritage Foundation and who served in a top Health and Human Services Department role in the first Trump administration.

The Trump administration also has the option of using the regulatory process to make the drug rule changes the Republican states are seeking. Some of those measures, such as reimposing an in-person dispensing requirement for mifepristone, could be done more quickly and easily than other moves, such as ending the FDA approval for the generic version of the drug, which might not be something the Trump administration could do even unilaterally, according to Greer Donley, a University of Pittsburgh law professor.

“In a world that they do less than what the anti-abortion movements wants them to do on mifepristone regulations, (the Republican states) might continue the lawsuit, regardless, to try to continue to exert pressure,” Donley said. Any Trump regulatory effort change the FDA’s mifepristone rules would run into litigation from the manufacturers and other parties.

With a final set of briefs from the Biden Justice Department due in early December, US District Judge Matthew Kacsmaryk — a Trump appointee who has already issued major rulings in the case in favor of the anti-abortion side — could decide in the coming weeks whether the legal challenge can go forward.

Biden regulations under legal attack

The mifepristone case is not the only lawsuit filed by anti-abortion activists that the Trump Justice Department will be inheriting. Several other Biden-era policies — many of them rolled out after Dobbs — have been challenged in court. Among them are regulations that require employers to offer time off for workers who need to travel to obtain an abortion, as well as an expansion of patient privacy rules aimed at protecting information about people’s reproductive care.

If the Trump administration seeks to undo those and other agency measures, it could make those lawsuits moot. Some Biden-era moves could be reversed quickly, but others, including the workplace rules and the patient protections, would have to go through the full rule-making process.

Another Biden measure under legal attack is his administration’s withholding of federal public health funds for states because of a dispute over abortion-related information that family programs provide.

The Supreme Court is weighing whether to take up one such case concerning public health funding that the US Health and Human Services Department withheld from Oklahoma this year.

The mechanics are little simpler for the incoming administration when it comes to the court fight over Idaho’s abortion ban, which provides exemptions for when a woman’s life is in jeopardy but not for serious health risks that fall short of being life-threatening. The Biden administration challenged the ban under the claim that federal law obligates hospitals to offer abortions in such medical emergencies even if state law prohibits the procedure.

Because the lawsuit was brought by the Biden Justice Department, it would be an easy maneuver for a Trump DOJ to simply drop the case. But it’s possible that an outside entity, such as patients or providers in Idaho who are affected by the abortion ban, will seek to intervene to keep the lawsuit alive.

After the Supreme Court punted on the case this summer, the full US 9th Circuit Court of Appeals — a liberal leaning appeals court — is scheduled to hear arguments on December 10.

Pressure to push the envelope

Some abortion rights opponents argue Trump wouldn’t be violating his campaign vows by undoing the policies that Biden put in place post-Dobbs.

But whether Trump will go beyond reversing Biden’s prior moves is a more difficult question, particularly as he has already made personnel choices — including the selection of Robert F. Kennedy Jr., a former Democrat who has been favorable to abortion rights in the past, for HHS secretary.

Even as anti-abortion activists have accepted that Trump would not support national legislation limiting abortion, the selection of Kennedy has prompted concerns about whether HHS would even take the kinds of actions that were embraced during the first Trump term, such the expansion of so-called conscience protections, which allow for doctors and even hospitals to opt out of performing abortions.

“President Trump sets the standard on life. He says he won’t sign a federal bill on abortion,” said one prominent anti-abortion activist, who asked for anonymity to speak candidly. “OK, we heard that, but there are the things that right now are questions that have to be answered.”

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