Whether the US bans it completely is basically up to the next president.
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For decades, the anti-abortion movement in the United States worked toward one major goal: the overturning of Roe v. Wade, the Supreme Court decision that established a federal right to abortion. In 2022, they finally succeeded, and states across the country began banning abortion immediately. Today about half the states either ban or severely restrict abortion. But now the anti-abortion movement is regrouping around a new goal: using the federal government to ban abortion in the rest of the country.
If Republicans take control of Congress in the 2024 election, it’s very possible they could pass a national abortion ban law. But experts don’t consider that the most likely way a national abortion ban could come about, for two reasons: Polling shows it would be extremely unpopular, and it would require the elimination of the Senate filibuster. Instead, they point to a different branch of the federal government — the president’s office and all the federal agencies it oversees.
In the federal agencies, opponents of abortion could fashion a de facto abortion ban by chipping away at abortion access in numerous ways, for example limiting access to medication abortion, which now constitutes two-thirds of all abortions in the US. The biggest way that the president’s office could limit abortion is by deciding to enforce something called the Comstock Act: a 150-year-old abortion ban killed by Roe v. Wade and brought back to life by its repeal.
The final way the next president could determine the future of abortion rights is through federal court appointments. The anti-abortion movement’s “next Roe v. Wade” is the national legal recognition of fetal personhood, an idea that would by definition outlaw all abortion. The current Supreme Court isn’t yet right-wing enough to endorse this idea. But after another Trump term, that could change.
Watch the video above for the details of how this all could happen.
00:00 Banning abortion everywhere
0:55 Mifepristone
1:58 'Ban states'
2:37 Project 2025
3:28 Comstock
4:51 Enforcing Comstock
7:16 Personhood
Sources and further reading:
Carrie N. Baker has written about the plans for an abortion ban for Ms. Magazine:
https://msmagazine.com/2024/07/16/republican-platform-nationwide-abortion-ban-supreme-court/
https://msmagazine.com/2024/03/29/project-2025-trump-republicans-ban-abortion-pills-mifepristone-trump/
https://msmagazine.com/2022/09/14/catholic-pro-life-supreme-court-abortion-ban-constitutional-rights-fetus-person-dobbs/
Mary Ziegler has written about the plans for a “backdoor” abortion ban: https://www.nytimes.com/2024/01/29/opinion/biden-trump-abortion-election.html
We also highly recommend her appearance on The Ezra Klein Show: https://www.nytimes.com/2024/03/08/opinion/ezra-klein-podcast-mary-ziegler.html
Vox’s Ian Millhiser has written a lot about the Comstock Act, where it came from, and how it could be used:
https://www.vox.com/abortion/351678/the-comstock-act-the-long-dead-law-trump-could-use-to-ban-abortion-explained
https://www.vox.com/politics/23678636/supreme-court-anthony-comstock-abortion-mifepristone-matthew-kacsmaryk
https://www.vox.com/policy-and-politics/2023/1/22/23539363/abortion-medication-mifepristone-supreme-court-pills-comstock-matthew-kacsmaryk
Vox’s Anna North has written about the threat that state fetal personhood laws already pose: https://www.vox.com/policy/24090347/alabama-ivf-ruling-fetal-personhood-abortion-embryos
And Vox’s Rachel Cohen has written extensively about how the Democrats and reproductive rights groups want to push those rights forward:
https://www.vox.com/policy-and-politics/2022/8/22/23306142/kaine-collins-codify-roe-abortion-congress
https://www.vox.com/24056692/abortion-roe-dobbs-2024-biden-election-presidential
The data on public support for a Congressional abortion ban (or lack thereof) comes from a June 2024 AP-NORC poll: https://apnorc.org/projects/support-for-legal-abortion-increased-since-roe-v-wade-was-overturned/
The Guttmacher Institute tracks how many abortions in the US are performed with medication: https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020
The data showing how many Americans think abortion should be legal in all or most cases is from Pew: https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/
And of course, Mandate for Leadership, popularly known as Project 2025, which can be read here: https://static.project2025.org/2025_MandateForLeadership_FULL.pdf
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