Stop Reading Tea Leaves. We Know What Trump Intends on Abortion.
Pinning down what Trump would do on abortion, if returned to the White House, has become an unnecessarily convoluted affair. His recent interview with Time magazine has not done much to clarify the matter, thanks to his typical evasive answers. But two things in it should be taken seriously: that Trump is entertaining federal policies that would criminalize people for their own abortions and that one of them is the Comstock Act of 1873. When Trump himself said in 2016 that “there has to be some kind of punishment” for having an abortion, he walked it back swiftly. Now, he is contemplating how to punish them.
Trump’s abortion agenda, regardless of his meandering and inconsistent answers, is pretty clear. He appointed three Supreme Court justices who helped overturn Roe. He continues to claim that abortion law is a matter for the states, no matter what specifically he is asked about the topic—a nonsensical response not uncommon when Trump is pushed on policy specifics. But as the transcript of the Time interview shows, Trump is considering what levers of punishment he can pull.
Here’s an example of both the evasive answers and the punitive underlying message. Time reporter Eric Cortellessa asked Trump whether he would veto a federal law recognizing the rights of embryos and fetuses, the “Life at Conception Act.” Such legislation is part of a decades-long effort to give legal weight to the notion of “fetal personhood.” Trump answered, “I’m leaving everything up to the states.”
On its face, this is a nonanswer. But to understand its significance, one must take into account the success the fetal personhood movement already has had in the states. An analysis by Pregnancy Justice found that state laws granting a fetus rights are already being used to criminally punish people for alleged harm to their fetuses. State supreme courts in Alabama, South Carolina, and Oklahoma have ruled that child protection laws apply to fetuses, and “those three states alone contributed to almost three in five pregnancy criminalization arrests from Roe until Dobbs,” according to the report. More than a third of states recognize fetal personhood in their law in some way, Politico reported. That means a person who is pregnant can be charged with a crime for alleged harm to a fetus, including abortion or anything deemed harmful.
This is an important point, one that is lost in debates over six-week versus 15-week versus 20-week bans, as well as the anxiety over a possible federal ban. “I think people understand abortion bans,” Lourdes Rivera, president of Pregnancy Justice, told me this week. Yet in those same states, she added, “the fact is, people have been criminalized because of their pregnancy all along.” Pregnancy Justice identified around 1,400 such cases between 2006 and 2022. With the various ways states can charge someone with a crime under the logic of fetal personhood, any pregnancy can be suspect, Rivera said, but policing is selective, often starting with the people who are most easily stigmatized: poor people, people of color, and Black and Indigenous people, in particular.
The criminalization often begins when a pregnant person seeks health care. “They are drug-tested most of the time without their informed consent,” Rivera explained. Health care providers may disregard medical privacy rights under the incorrect presumption that it’s their job to report such cases to law enforcement or child and family policing agencies. “We found a third of cases where pregnant people are charged emanate from a health care setting,” Rivera said. “We’re also seeing the fact patterns.… You fall down the stairs and you’re pregnant and you can be potentially criminalized. You take a prescription medication that your doctor prescribes for you. You could be potentially criminalized … you have a miscarriage or stillbirth and you get criminalized.” This health care to criminalization pipeline ends up driving pregnant people away from care.
Trump is very likely considering such punishment at the federal level. When Trump was asked about mifepristone and the Comstock Act in this recent interview, he actually offered some new information, although it was characteristically vague. Of mifepristone, Trump told Time he was “not going to explain” his opinion but then added he had “pretty strong views on that,” which he would be releasing “probably over the next week.” In a follow-up question about how the Comstock Act might be used to criminalize abortion medication, Trump was asked directly if his Department of Justice would enforce the Comstock Act. Trump replied succinctly but vaguely, “I will be making a statement on that over the next 14 days.… I have a big statement on that. I feel very strongly about it. I actually think it’s a very important issue.”
Well, about that: This interview was conducted on April 12, and published more than two weeks later. Trump has made no such statements on mifepristone or on the Comstock Act on the schedule he promised. That’s not a surprise. As recently as February, Trump’s own attorney Jonathan Mitchell was publicly hoping that Trump “doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth.” Mitchell helped craft the Texas vigilante abortion law Senate Bill 8 and is one of the apparent thought leaders advancing this idea that the Comstock Act was currently enforceable as an abortion ban—banning not only pills sent directly to those self-managing abortion but all materials required for surgical abortions in a clinic. If Trump is now not only acknowledging the Comstock Act when reporters ask him about it but claiming to feel strongly, that’s a shift worth noting. If he’s entertaining the idea of enforcing the Comstock Act, that means he’s considering how to punish people for having an abortion.
Last, Trump was asked directly, “Are you comfortable if states decide to punish women who access abortions after the procedure is banned?” Trump’s first response was, “Are you talking about number of weeks?” From there, the line of questioning shifted to the question of how many weeks, and if he thought states should “monitor women’s pregnancies so they can know if they’ve gotten an abortion after the ban.” The questioning misses something significant: Trump doesn’t have to rely on the states to punish people for abortions, not if he’s considering using the Comstock Act as a federal ban. (I asked Trump via his campaign if he supports criminally punishing people for having abortions, using the Comstock Act, and got no response.)
Politicians who say they support abortion rights should now be thinking about how to remove some of these levers Trump might pull. One such move might be the Department of Health and Human Services’s recently announced new rule under HIPAA, meant to protect pregnant people’s medical privacy. It is supposed to prevent law enforcement action against people for their pregnancies. “Pregnancy Justice’s research reveals that more than 9 in 10 pregnancy criminalization cases involve allegations of substance use as a pretext to strip pregnant people of their rights,” the group said in a statement in response to the HIPAA changes. But, as Pregnancy Justice pointed out, it lacks clarity on how records related to pregnancy and substance use would be protected. Given that using a drug test as pretext to investigate someone’s pregnancy is extremely common, any rule that doesn’t specify how this would be prevented might not mean much for many pregnant people.
The other lever of criminalization we could dismantle before a Trump administration gets to it is the Comstock Act. A full repeal would end the prospect of it being used as a national abortion ban. Though the Department of Justice has issued a memo saying they don’t believe it is enforceable against mailing abortion medication, there’s little chance that would carry over to a Trump-picked Justice Department.
We can continue trying to divine Trump’s position on abortion, but we don’t need to in order to start reducing the ways people are currently criminalized or could be criminalized in the future.
