Donald Trump’s statements during the presidential campaign that, if elected, he would not sign a national “ban” on abortion were both surprising and gravely disappointing to his pro-life supporters.
To be sure, Democrats had made political headway by warning voters that Trump would support such a law, and public opinion would not support a national law that bans early abortions or does not include exceptions.
Still, the idea that Trump did enough by nominating Supreme Court justices who signed the Dobbs majority opinion of 2022 ignores what reversing Roe v. Wade entailed. It meant only that lawmakers could now legislate for or against abortion. And reversing Roe did not exclusively send the issue “back to the states.” Even during Roe’s regime, Congress could enact limited restraints such as the federal ban on “partial-birth abortion,” and it has the authority to do far more now. Trump rightly criticized his opponent for wishing to allow abortion “until the moment of birth,” then seemed to turn around and imply that he would do nothing differently.
In any event, the new Senate does not seem to have the sixty votes needed to invoke cloture and pass new legislation against abortion, so a federal ban is unlikely to reach President Trump’s desk. This raises the question: using only his executive authority as president, what actions could Trump take to respect the lives of unborn children?
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Sign up and get our daily essays sent straight to your inbox.President Trump has already taken some positive action on this issue in the first week of his new term. Each additional suggestion below is constitutionally sound and consistent with (in some cases, demanded by) existing statutory law. Some are actions already taken during the first Trump administration that President Biden rescinded; others would simply reverse executive policies created anew by Biden.
1. Foreign Aid for Abortion
One of President Trump’s first executive actions—issued on January 23, 2017, the day of the annual March for Life, and published two days later—was to reinstate the “Mexico City” policy of the Reagan and both Bush presidencies. It generally prohibited US population assistance funding of organizations that perform and promote abortions abroad. President Trump even broadened the policy to govern US global health assistance as well—an improvement that pro-life groups had unsuccessfully requested of President George W. Bush. The Trump memorandum also called for effective enforcement of the Kemp-Kasten amendment, forbidding the funding of organizations involved in programs of coerced abortion or involuntary sterilization. President Biden had rescinded the Mexico City policy, but on January 24, President Trump reinstated his 2017 policy.
2. Religious Freedom and Healthcare Conscience Rights
On May 4, 2017, President Trump issued Executive Order 13798 declaring: “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” The order, published May 9 of that year, specifically authorized “amended regulations” to address “conscience-based objections” to the mandate for coverage of contraceptives and early abortifacients as “preventive care” under the Patient Protection and Affordable Care Act (PPACA). These regulations were ultimately finalized on November 15, 2018, with rules for granting religious and moral exemptions. With Executive Order 13831, published May 8, 2017, Trump authorized a White House Faith and Opportunity Initiative to promote his policy throughout the government.
Besides addressing the contraceptive mandate, these executive orders provided support for other actions defending religious freedom and conscience rights.
First, on January 19, 2018, the Office for Civil Rights at the Department of Health and Human Services was restructured to include a Conscience and Religious Freedom Division to address complaints that federal laws protecting the rights of conscientious objection in health care were being violated. Under attorney Roger Severino, this Division was active in requiring governmental bodies and healthcare institutions to stop discriminating against healthcare providers who object to involvement in abortion. The Biden administration dissolved the Division. But now it is more urgently needed than ever, as pro-abortion state governments have abandoned “choice” to emphasize guaranteed “access” to abortion instead: and “access” means pressure on objecting providers to participate.
Second, on January 26, 2018, a proposed rule was published to clarify the scope of numerous existing federal laws protecting conscience rights in healthcare and ensure their enforcement. These laws include statutory provisions on abortion enacted into law over a period of many years, from 1973 to 2004, that were ignored or subjected to narrowing interpretations by some other administrations. This rule was finalized on May 21 of that year but contested in federal courts, then rescinded (and its final version apparently deleted from the online Federal Register) by the Biden administration.
Third, on December 17, 2020, a multi-agency final rule required the “equal participation of faith-based organizations in the federal agencies’ programs and activities,” so religious organizations serving the common good can take part fully in federal programs without compromising their beliefs. President George W. Bush had established a similar policy, but it was weakened in various ways under President Obama.
On January 24, President Trump rescinded former President Biden’s executive action and reinstated Executive Order 13831. It is unclear whether this also renews the 2018 regulations protecting conscience rights that had cited this order for their authority.*
3. Abortion in the Title X Family Planning Program
On June 1, 2018, the Department of Health and Human Services published a proposed rule on the domestic federal family planning program, Title X of the Public Health Service Act. Titled “Compliance with Statutory Program Integrity Requirements,” it sought to enforce a statutory provision of Title X that has been part of this law since it was enacted in 1970: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” The rule forbids programs receiving these funds to perform or promote abortions and requires financial and physical separation between funded activities and any abortion involvement. The programs cannot make abortion referrals but can inform pregnant patients about local providers of comprehensive prenatal care, including some that may also provide abortions. After a comment period, a final rule was published on March 4, 2019, with minor technical corrections published on April 10.
The Reagan administration had issued a similar rule, which the US Supreme Court upheld in the 1991 case Rust v. Sullivan. But that policy was rescinded by later Democratic administrations, which have required “nondirective” counseling on all pregnancy options and referral for abortions on request. The importance of the Reagan/Trump policy is dramatized by Planned Parenthood’s statements that it would leave the program rather than comply with it.
4. The Meaning of “Discrimination on the Basis of Sex”
Section 1557 of PPACA included a ban on “discrimination on the basis of sex” in health coverage governed by the statute. The Obama administration then redefined “sex” to include “gender identity” as well as “termination of pregnancy,” pressuring healthcare providers to offer gender transition services and abortions contrary to their religious beliefs and moral convictions. This policy was challenged in federal court by religious organizations, including Catholic hospitals and some state attorneys general. Plaintiffs noted that while Section 1557 claimed to apply the sex discrimination policy of Title IX of the Education Amendments of 1972 to healthcare, it completely ignored that law’s “abortion-neutral” provision and its protection for religious tenets. Some federal courts enjoined the Obama policy.
In April 2019, the Trump administration’s Department of Justice filed a brief in federal court declaring that it had returned to interpreting federal sex discrimination laws as referring to sex in its longstanding biological meaning, and did not see these laws as mandating abortion. On June 24, 2019, it published a proposed rule establishing this policy, with a final rule published on June 19, 2020. The Biden administration returned to the Obama administration’s redefinition of “sex.”
On January 20, his first day in office, President Trump issued an executive order rejecting “gender ideology” and authorizing the restoration of a biological definition of “sex” throughout federal law. This effectively ends the Biden administration’s efforts to redefine “sex” in Section 1557 to include “gender identity.” However, it does not seem to address the use of the term “sex” to mandate involvement in abortion.
5. Correcting the Biden “Abortion Distortion” on Federal Statutory Law
It is said that to someone holding a hammer, every problem looks like a nail. After the Supreme Court’s Dobbs decision reversing Roe, President Biden declared abortion to be the hammer. In Executive Order 14076, published on July 13, 2022, he called for expanded efforts throughout the federal government to promote abortion as “essential to justice, equality, and our health, safety, and progress as a Nation.” He followed up in August 2022 with Executive Order 14079, specifically authorizing the redefinition of laws on nondiscrimination, laws on emergency medical treatment, and so on to ensure ready “access” to abortion in all 50 states. Modest laws restraining federal involvement in abortion were reinterpreted to be nearly meaningless, and laws intended to support pregnant women and their unborn children were distorted to mandate abortions.
On January 24, through an executive order titled “Enforcing the Hyde Amendment,” President Trump rescinded these two Biden orders. However, it is unclear whether the following regulations and guidance implementing the Biden pro-abortion policy have thereby been rescinded.**
First, Biden’s executive order authorized “updates” to rules implementing the Emergency Medical Treatment and Active Labor Act (EMTALA), signed into law by President Reagan in 1986. The Department of Health and Human Services then published “Guidance” making the unprecedented claim that EMTALA requires abortions in “emergency medical conditions” even in states with laws against abortion.
EMTALA had been enacted to prevent hospital emergency departments from turning away patients (including pregnant women), most often those unable to pay, and transferring them to other facilities without assessing their immediate health needs. But the statute defines an “emergency medical condition” as, among other things, a condition “placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,” and requires medical staff to “stabilize” the endangered patient’s condition to prevent it from deteriorating during transfer. It nowhere specifies what that treatment must be, and of course, never suggests that it must be an abortion, which (to say the least) would create rather than treat a threat to the unborn patient. When pro-abortion groups urged the Obama administration in 2011 to declare that EMTALA overrides federal conscience laws protecting the right to decline involvement in abortion in all circumstances, even that administration refused, saying that no conflict had ever been found between EMTALA and these laws.
Texas and Idaho filed suit against the Biden administration’s “Guidance.” A federal court in Texas enjoined the new, legally baseless federal policy, but its legal force in other jurisdictions remains uncertain. It should be formally rescinded.
Second is the shipping of abortion drugs, mifepristone and misoprostol, through US mail, even to states with laws against abortion. Since 2021, the Food and Drug Administration has allowed the drugs to be prescribed by “telehealth,” without an in-person medical visit, and mailed directly to women. This increases risks to women’s lives and health, as it does not allow an assessment of gestational age or the detection of a dangerous ectopic pregnancy.
A federal law enacted in 1873, which was not enforced during the Roe v. Wade regime but remains in effect, prohibits the use of the US Postal Service to deliver any “article or thing designed, adapted, or intended for producing abortion” or any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
But the Biden administration’s Justice Department has insisted that the law applies only to abortions prohibited by state law, and only when it can be demonstrated in a given case that the drugs would only be used to perform such an abortion. This is an arbitrary restriction of a federal statute whose meaning is clear on its face, and some federal courts have concluded as such. The Supreme Court dismissed a lawsuit brought by medical professionals against the FDA policy, ruling that these particular plaintiffs lacked standing to sue, so the legal issue remains unsettled. The Trump administration should enforce the law that is actually on the books.
Third, the Consolidated Appropriations Act of 2023 included a new law, the Pregnant Workers Fairness Act (PWFA), generally requiring employers to accommodate the limitations a woman may face due to “pregnancy, childbirth, or related medical conditions.” The Act requires accommodations such as temporary reassignment, an exemption from physically demanding tasks, leave time during recovery from childbirth, and more. It never mentions abortion, and was supported by lawmakers and organizations opposed to abortion; sponsors and supporters of both parties repeatedly said during legislative debate that it does not require “accommodations” for abortion. Clearly, abortion is “related” to pregnancy and childbirth only as their negation. Yet the Equal Employment Opportunity Commission issued a final rule on April 19, 2024, stating that having an abortion is a “related medical condition” requiring accommodations such as medical leave, using the word “abortion” 348 times. A leading sponsor of the Act, Senator Bill Cassidy, said the new regulations “completely disregard legislative intent and attempt to rewrite the law by regulation.” President Trump should rescind this arbitrary overreach by the EEOC and affirm the law’s intent to assist childbearing women.
These are all actions President Trump can and should take on his own authority as president. The prospect of new federal statutes serving pregnant women and their children, including laws that do not forbid abortions outright, deserves its own discussion as well.
Author Notes:
* After consulting with attorneys on the factual accuracy of this statement, I would replace the final sentence of this paragraph with the following: “However, because the Biden administration had issued final rules in 2024 implementing its much weaker policies on faith-based organizations and on conscience rights, new rulemaking is needed to implement the Trump policies on these matters.”
** Similarly, I would replace this entire sentence with the following: “On January 24, through an executive order titled “Enforcing the Hyde Amendment,” President Trump rescinded these two Biden orders. However, further executive action is needed to replace the following regulations and guidance implementing the Biden pro-abortion policy.”
Image by nata_zhekova and licensed via Adobe Stock.