States with abortion restrictions may be more likely to go after abortion care providers under the Trump administration than under the Biden administration, experts say.
“We anticipate that you’re going to have some additional activity with state [attorneys general] in restrictive states going after providers in protective states or their own state,” said Stacey Callaghan, partner and co-head of the women’s digital health initiative at law firm McDermott Will & Emery.
The Trump administration is the “complete inverse” of the Biden administration on abortion policy, said Alina Salganicoff, senior vice president and director for women’s health policy at KFF, a nonprofit health policy research, polling and news organization.
“You have an administration, particularly in the Department of Justice, that has a strong record against abortion,” Salganicoff said.
The Trump administration has not indicated what, if any, abortion-related policy changes it may pursue, but “they’re gearing up,” Salganicoff said.
For instance, the executive order establishing two sexes in the federal government, which uses definitions that imply life begins at “conception,” may be a sign that the administration will adopt an anti-abortion position rooted in fetal personhood, according to the National Health Law Program.
“That’s something we’re keeping our eye on,” Callaghan said.
States go after providers
For the first time since the U.S. Supreme Court overturned Roe v. Wade in 2022, states like Louisiana and Texas are using abortion restrictions to file lawsuits against and criminally charge providers.
In December, Texas Attorney General Ken Paxton filed the first post-Roe criminal charge against a midwife and an assistant for allegedly providing illegal abortions. Paxton also filed a civil lawsuit against an abortion provider in New York for mailing abortion pills to a patient in Texas.
Louisiana, meanwhile, has filed criminal charges against the same provider for mailing abortion pills to a woman in the state and is investigating whether to file a second charge.
“The timing is interesting and somewhat telling,” Callaghan said. “We’ve been seeing the momentum pick up as well. I do think that restrictive AGs are emboldened by the change in administration.”
Since Roe v. Wade was overturned, a dozen states have banned abortion entirely, while six have imposed early gestational limits. Most other states allow abortion until 24 weeks of pregnancy, according to KFF.
In addition, half of states that do not have total abortion bans in place have targeted regulation of abortion providers, or TRAP, laws, imposing additional legal requirements on clinicians who provide abortion care.
Previously, states with abortion bans had not been prosecuting providers for delivering abortion care, in large part because nearly all providers stopped offering abortions when the restrictions took effect, experts say.
“There are not a lot of abortions going on,” Salganicoff said. “These bans have been very effective.”
Providers are even denying abortion care to patients who likely qualify for an exemption due to “the chilling effect because clinicians have so much at stake,” and because hospitals are “extremely conservative institutions,” Salganicoff said.
In addition, states had been hesitant to penalize clinicians for providing abortion care because bans faced legal challenges, and there wasn’t “as much of an appetite” to prosecute providers amid an uptick in public support for abortion rights, Callaghan said.
About 6 in 10 people say abortion should be legal in all or most cases, according to a 2024 survey by the Pew Research Center. In November’s general election, six states amended their constitution to protect abortion rights, while Nevada took a significant step toward it.
While many states have limited abortion access, 22 states and Washington, D.C., have passed shield laws to reduce the legal risks for clinicians providing abortion care to patients living in states with abortion bans or restrictions.
A New York court in March, for example, blocked Paxon’s attempt to punish a New York doctor for prescribing and sending abortion medication to a woman in Texas, which has an abortion ban.
It could all soon come to a head as more states with abortion restrictions challenge shield laws.
“Now, they’re going after providers in a way that we haven’t seen before,” Callaghan said. “We anticipate other restrictive states doing something similar.”
U.S. Attorney General Pam Bondi has indicated she wants to help restrictive states like Louisiana and Texas challenge shield laws in more permissive states, such as New York.
The results of the cases will likely determine whether other states with abortion restrictions take on shield laws, Randi Seigel, partner at Manatt Health, said in an email.
The Comstock Act
The Trump administration could use the Comstock Act, an 1873 law that banned the mailing of obscene matter and articles used to produce abortion, to restrict abortion access across the country, experts said.
Under the Biden administration, the Justice Department “determined the Comstock Act only applies when the sender intends for the material or drug to be used for an illegal abortion, and because there are legal uses of abortion drugs in every state including to save the life of the pregnant person, there is no way to determine the intent of the sender,” according to KFF.
Although Trump pledged not to direct the DOJ to enforce the Comstock Act while campaigning for president, his administration could interpret it differently to restrict abortion access. Anti-abortion groups have claimed in federal court that the Comstock Act bans the mailing and distribution of mifepristone.
“A literal interpretation of the Act could potentially also apply to materials used to produce all abortions, not just medication abortions … and could affect other medical care, such as miscarriage management,” according to KFF.
Trump, however, seemingly broke with anti-abortion advocates when he spoke with Time in November, suggesting he would preserve access to abortion pills. He also said abortion was a state issue during his presidential campaign.
And in May, the DOJ asked a Trump-appointed judge to toss a lawsuit filed by Idaho, Kansas and Missouri demanding that the Food and Drug Administration ban telehealth prescriptions for mifepristone, a drug used in the medication abortion regimen. The Biden administration, which sought to protect access to abortion and boost reproductive healthcare privacy, took the same position.
State abortion restrictions are not created equal
Post-Dobbs fears that prosecutors would pursue “edge cases” against other providers, such as therapists whose patients get an abortion or those offering IVF services, have gone unrealized to date, Callaghan said. She noted that the lawsuits in Louisiana and Texas involve clinicians providing abortion care to people within those states.
However, states like Oklahoma and Texas have abortion bans that include penalties for aiding and abetting the procedures, which means the states could “go further,” Callaghan said.
There are also certain state attorneys general who are willing to enforce abortion bans and other restrictions more aggressively in service of their own political ambitions or because they have public support for it, experts said.
“I do not think you will see all this activity out of every state with an abortion ban,” Callaghan said. “There are a handful of states that are really aggressive and will continue to be aggressive.”
