Keith Mack
The question of whether a U.S. president can change abortion laws is complex. While no president has successfully enacted a nationwide abortion ban, a president can use executive actions and existing laws to significantly restrict access to abortion. For example, President Trump signed an Executive Order to end the use of federal taxpayer dollars to fund or promote elective abortion, and Vice President Kamala Harris has indicated her support for abortion access and other forms of reproductive healthcare. As such, the president's ability to change abortion laws depends on their political stance and the actions they are willing to take.
| Characteristics | Values |
|---|---|
| Can a U.S. President ban abortion across the country? | No president or Congress has successfully passed national abortion legislation. |
| Can a President restrict access to abortion? | Yes, a president can take significant actions to restrict access to abortion. |
| Can a President impact abortion access? | Yes, a President's administration can impact abortion access via the federal agency rulemaking process or by prosecuting state bans when they conflict with federal laws. |
| Can a President end the use of federal taxpayer dollars to fund or promote elective abortion? | Yes, President Trump signed an Executive Order to end the use of federal taxpayer dollars to fund or promote elective abortion. |
| Can a President end federal funding of abortion overseas? | Yes, President Trump signed a Presidential Memorandum to stop the use of federal taxpayer dollars for abortion overseas. |
| Can a President appoint officials to withdraw FDA approval for abortion medications? | Yes, a President can appoint officials to withdraw FDA approval for abortion medications. |
| Can a President revive the Comstock Act to restrict the mailing of abortion drugs? | Yes, a President can revive the Comstock Act to restrict the mailing of abortion drugs. |
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What You'll Learn
The Comstock Act and abortion drugs
The Comstock Act is an anti-obscenity law passed in 1873 that prohibits the mailing of abortion medication, equipment used for abortion care, and contraceptives. The Act declares "obscene" materials, including drugs advertised for use in abortions, as not mailable. While the Act hasn't been enforced in decades, there have been recent attempts to invoke it to restrict access to abortion drugs.
In 2023, a federal judge in Texas, Matthew Kacsmaryk, raised the possibility of using the Comstock Act to challenge the FDA's approval of mifepristone, one of the drugs used in medication abortions. Kacsmaryk's ruling conflicted with another ruling from a U.S. district court in Washington, and the case is still ongoing.
The potential misuse of the Comstock Act as a tool to restrict abortion access has been a concern for abortion rights advocates. They argue that the Act, if enforced, could be used as a backdoor to an abortion ban and an attack on birth control. There have been calls for Vice President Kamala Harris to work with Congress to repeal the Comstock Act and codify abortion rights.
The applicability of the Comstock Act to abortion-related articles has become a subject of legal dispute, especially after the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022), which devolved regulation of abortion back to the states and ended the recognition of abortion access as a constitutional right. This decision has led to a renewed focus on the Comstock Act as a potential tool to restrict abortion access.
In conclusion, the Comstock Act of 1873, if enforced, has the potential to significantly impact the availability of abortion drugs and equipment through mail delivery. While there is ongoing legal dispute and political debate surrounding the Act, it highlights the complex nature of presidential power over abortion laws and the efforts of abortion rights advocates to secure federal protection.
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Appointing officials to withdraw FDA approval for abortion medications
While no president has successfully enacted a nationwide abortion ban, a president can use executive actions and existing laws to significantly restrict access to abortion. One of the actions a president could take is to appoint officials to withdraw the FDA's approval of mifepristone, a medication used in abortion procedures.
Mifepristone, often referred to as the abortion pill, was approved by the FDA over 20 years ago as a medication that can safely and effectively end pregnancy. It is estimated that in 2020, medication abortions accounted for just over half of all abortions in the US. The drug regimen terminates pregnancies successfully 99.6% of the time, with a 0.4% risk of major complications and an associated mortality rate of less than 0.001%.
The FDA initially approved mifepristone with some conditions on who and how it can be dispensed in 2000, and over the years, the FDA has amended these restrictions. In 2021, the FDA approved a REMS modification that removed the in-person dispensing requirement and added pharmacy certification. In April 2019, the FDA approved a generic version of Mifeprex, Mifepristone Tablets, 200 mg, which is therapeutically equivalent to Mifeprex and can be safely substituted.
However, there have been legal challenges to the FDA's approval of mifepristone. The case that has gained the most attention is Alliance for Hippocratic Medicine (AHM) v. FDA, filed in November 2022. The plaintiffs in this case argue that the FDA did not act within its authority and that the Comstock Act, an 1873 anti-obscenity law, prohibits the mailing of any medication used for abortion. The outcome of this case could have significant ramifications for access to medication abortion across the country, even in states where abortion is legal and protected.
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State laws protecting abortion rights
While no president has successfully enacted a nationwide abortion ban, a president can use executive actions and existing laws to significantly restrict access to abortion. States have varying abortion laws, with some having constitutional protections for abortion, while others have outright bans or strict regulations.
Abortion is protected by state law in 21 states and the District of Columbia, according to the Center for Reproductive Rights. These states fall into the "Expanded Access" or "Protected" categories, indicating that abortion rights are not only protected by state law but that additional laws and policies have been implemented to enhance access to abortion care.
California, Illinois, and Michigan are examples of states with constitutional protections for abortion. Arizona, which previously had a 15-week ban, recently had its abortion ban permanently blocked, demonstrating the state's commitment to protecting abortion access.
States with protected abortion rights are encouraged to enact laws and policies that enhance access to abortion services, ensuring that people can access the care they need. This may include policies that address medically unnecessary barriers to abortion care and ensure that abortion decisions remain private and free from political interference.
Additionally, states with protected abortion rights can work to satisfy their obligations under the Emergency Medical Treatment and Labor Act (EMTALA). This act requires hospitals that receive Medicare funds to provide emergency stabilizing treatment, including abortion, to any patient who needs it, regardless of their ability to pay.
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$210
The Hyde Amendment
The Amendment has been re-enacted every year since 1976, with exceptions varying over time. The 1978 Amendment, for example, presented new exceptions for rape survivors and incest cases. From 1981 to 1993, the sole exception was in cases where the woman's life was endangered. In 1993, the Hyde Amendment was expanded once again to include exceptions for rape and incest cases.
In 2025, President Donald J. Trump signed an Executive Order to enforce the Hyde Amendment and end the use of federal taxpayer dollars to fund or promote elective abortions.
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The Mexico City Policy
When in effect, the Mexico City Policy requires foreign non-governmental organizations to certify that they will not "perform or actively promote abortion as a method of family planning" with non-U.S. funds as a condition for receiving U.S. global family planning assistance. This means that organizations that fall under the Mexico City Policy are not able to offer or perform abortion services, even when funded by other sources. The policy has been rescinded and reinstated multiple times by subsequent administrations along party lines, with Democratic administrations typically revoking it and Republican administrations reinstating it.
In 2017, President Trump expanded the scope of the Mexico City Policy to apply to most global health assistance funded by the United States, not just global family planning programs. This expansion included funding for programs such as PEPFAR, nutrition, and maternal and child health. The policy was reinstated again by President Trump at the beginning of his second term in 2025, in its expanded form.
The impact of the Mexico City Policy has been studied, with some research suggesting that it has led to higher rates of pregnancy, decreased contraceptive use, disrupted services, and increased administrative burdens for funding recipients. For example, a 2011 study of Sub-Saharan Africa found that the policy led to an increase in the number of abortions, as the reduction in financial support for family planning organizations resulted in a greater number of accidental pregnancies. Similarly, a 2015 study of Ghana and a 2019 study in The Lancet found that the policy led to an increase in unintended pregnancies and abortions.
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Frequently asked questions
No president has successfully enacted a nationwide abortion ban. However, a president can use executive actions and existing laws to significantly restrict access to abortions.
A president could revive the Comstock Act to restrict the mailing of abortion drugs, appoint officials to withdraw FDA approval for abortion medications, and advocate for fetal personhood laws to grant rights to fetuses.
The Biden administration has taken steps to protect abortion access, such as issuing an executive order that called on different government officials and agencies to promote access to reproductive care, including abortion. They have also interpreted EMTALA, a federal law that requires most hospitals to provide emergency care, as applying to abortion even in states with bans.
