What a second Trump term means for abortion rights in Pennsylvania

A legal expert told the Pennsylvania Independent recently that the impact of President-elect Donald Trump’s second term on reproductive rights depends on whom he appoints to his Cabinet and how he uses the power of the executive office.

Rachel Rebouché, the Kean Family Dean of Temple University Beasley School of Law, said the incoming president could reverse protections implemented by President Joe Biden’s administration and even instruct his attorney general to prosecute people who seek abortions.

Abortion is currently legal in Pennsylvania until up to 24 weeks of pregnancy and is likely to remain so under the leadership of Democratic Gov. Josh Shapiro, whose term doesn’t end for another three years. 

The Biden administration’s policies, such as interpreting the Emergency Medical Treatment and Labor Act to require Medicare-funded hospital emergency departments to provide abortions if medically necessary, determining how privacy laws apply to reproductive rights, and reinforcing the Food and Drug Administration’s approval of the medication abortion drug mifepristone, “could all go away,” she said.

Trump would be able to issue executive orders changing how federal departments treat reproductive rights without needing approval from Congress. The people he appoints to lead those departments will ultimately be responsible for carrying out his agenda.

“The Trump administration doesn’t have to do much, just to not contest that the FDA shouldn’t have listed a particular restriction or that EMTALA doesn’t preempt state abortion bans like the ones in Texas and Idaho,” she said. “At the minimum, even if it doesn’t reverse course, I think that we should expect to see a different approach and a different focus.”

On June 27, the U.S. Supreme Court dismissed a case involving an Idaho law that banned abortion and blocked the enforcement of EMTALA, which requires Medicare-funded hospitals to provide stabilizing care in emergency medical situations and was interpreted by the Biden administration to include abortion under such care. The case will now be decided by lower courts.

Following the case’s dismissal, Xavier Becerra, the secretary of health and human services, and Chiquita Brooks-LaSure, the administrator of the Centers for Medicare & Medicaid Services, sent a letter to hospital providers across the country informing them that EMTALA’s protections remain in force as they have been for the last four decades.  

In June, the Supreme Court ruled unanimously in a case challenging the approval of the drug mifepristone, the first-step oral medication used to end a pregnancy in combination with the drug misoprostol, that the plaintiffs did not have legal standing, preserving legal access to it. This came after a decision in April 2023 by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas that suspended the FDA’s 23-year-old approval of mifepristone along with subsequent rules governing the use of the drug. The U.S. Department of Justice under President Joe Biden appealed Kacsmaryk’s decision to the U.S. Court of Appeals for the 5th Circuit.

Mifepristone is used in over half of all abortions nationwide. 

Rebouché said another issue under discussion is whether Trump would use the Department of Justice to enforce the Comstock Act, a federal law dating back to 1873 that criminalizes the mailing of “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and— Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” The punishment for violating the law is a fine, imprisonment for up to five years, or both.

Rebouché said how Comstock would be enforced depends on how Trump uses the Justice Department. 

Page 562 of “Mandate for Leadership: The Conservative Promise,” also known as Project 2025, refers to a plan to use Comstock to criminalize abortion federally: “ Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.”

Trump has continued to falsely claim that he knows nothing about Project 2025, but he recently appointed its co-author, Tom Homan, to serve as his “border czar.” 

In October, Trump posted to social media, “EVERYONE KNOWS I WOULD NOT SUPPORT A FEDERAL ABORTION BAN, UNDER ANY CIRCUMSTANCES, AND WOULD, IN FACT, VETO IT, BECAUSE IT IS UP TO THE STATES TO DECIDE BASED ON THE WILL OF THEIR VOTERS (THE WILL OF THE PEOPLE!).” 

Rebouché said she believes Trump’s language when discussing abortion bans “is tricky,” noting that some politicians discussing bans mean a ban on abortion at all stages of pregnancy without exceptions, while others mean a ban at a specific number of weeks’ gestation. In his October social media post, Trump said he doesn’t support what he falsely claimed was Democrats’ position of abortion on demand in the latter months of pregnancy and “the possibility of execution of the baby after birth.”

In the 2024 election, voters in 10 states voted on ballot measures that would enshrine the right to abortion in their state constitution. Voters approved such measures in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York. Those measures failed in Florida, Nebraska and South Dakota.  

Rebouché said the force of the protections established by the ballot measures would depend on whether there’s a “national ban or a case that establishes some other right to life for the fetus that would contravene abortion rights.” 

“I think the ballot initiatives show that people care about abortion, they care about protecting it. And I don’t know what that means for the priorities of a Trump administration, whether or not this will be high on the list, or whether he will appoint people like Ken Paxton, I guess, or others who have clear track records of opposing abortion access,” Rebouché said.