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In the early days of his second term in office, Donald Trump has been cagey about where his administration will take abortion policy. None of his seemingly endless executive orders has directly addressed the issue. On Thursday, Trump did decide to pardon a group of offenders convicted of violating the federal FACE Act, which protects access to abortion clinics and similar facilities, but his broader plans remain a mystery. That isn’t true of Congress, where the Senate’s push for the Born-Alive Abortion Survivors Protection Act already fell short of the votes needed to overcome a Democratic filibuster. The failure of such a relatively minor bill, though, is potentially a key indicator itself of how far Republicans may be willing to go with their unpopular abortion policies during Trump’s second term.
So-called born-alive bills are part of a well-worn anti-abortion strategy to focus on abortion later in pregnancy, paint Democrats as extremists, and draw attention away from the unpopular bans enforced in most Republican-led states. It’s true that Republicans don’t have 60 votes in the Senate to pass sweeping abortion legislation, but the GOP finds itself in a very different position than it did in 2022, when the prior born-alive fight unfolded. Donald Trump is in the White House; Republicans control both houses of Congress and have reshaped the federal courts. Editorials about Democrats in the wilderness come almost daily. It says a lot that at a moment of political strength, the GOP has fallen back on a messaging bill designed more to make Democrats look bad than to meaningfully advance the anti-abortion movement’s agenda. It’s far too early to know what will come from the Trump administration on abortion, but the signs so far suggest that Republicans in Congress won’t be reliable allies for the anti-abortion movement. And it’s for just that reason that the movement’s proponents have made backup plans that rely on conservative attorneys general and state leaders to achieve the equivalent of a national ban.
Born-alive bills have been a go-to strategy for years, though not because the laws are especially impactful, at least compared with others championed by the anti-abortion movement. Homicide laws would prohibit the killing of an infant after abortion, and while reliable data is hard to come by, given how states collect that information, standard procedures used in later abortion make live birth unlikely. What’s more, since 2002, when Congress passed another born-alive bill, children born after an attempted abortion have been entitled to emergency medical treatment. Democrats voting against this recent bill stressed that the legislation is more than a messaging exercise: The proposal would create new penalties for providers who don’t offer certain kinds of treatment; this, Democrats argued, would cost families their final moments with infants who have little chance of survival. And the party used the bill to stress that Republicans were prioritizing an attack on abortion at a time when Americans were being confronted with much bigger problems.
But what, exactly, were Republicans doing? Given the GOP’s slender majority, it’s fair to view the born-alive bill not as legislation with a real chance of success so much as a gesture to the anti-abortion movement. But it’s not much of a gesture. Anti-abortion leaders have called on Congress to pass a ban at 15 or even six weeks, while acknowledging that the passage of any such legislation in the current political environment seems unrealistic. Many have focused on federal enforcement of the Comstock Act, the 19th-century obscenity law that anti-abortion lawyers have rebranded the “federal abortion pill anti-trafficking law.” Instead of spotlighting either of these proposals, Republicans looked to a born-alive bill, replaying a strategy designed when Roe v. Wade was still the law to survive judicial scrutiny and embarrass Democrats.
If this bill wasn’t going to pass, it was intended mostly to tell abortion opponents what Republicans in Congress would do for them if given the chance. The answer, it seems, isn’t much. That’s the same signal being sent by the letter a group of anti-abortion lawmakers delivered to the Trump administration laying out lawmakers’ wish list on abortion. The requests detailed in the letter weren’t especially bold either, focusing on a rollback of Biden-era policies rather than the introduction of anything new.
Republicans may claim a mandate after the 2024 election, but so far, it seems that at the federal level, many of them are still running scared on abortion. Abortion opponents are worried enough that they’ve developed contingency plans, many of them focused on the states. State legislatures are considering a slate of bills intended to crack down on the flow of abortion pills. Americans United for Life, a leading anti-abortion group, has encouraged state attorneys general to find ways to enforce the Comstock Act themselves. For example, AUL argues, attorneys general could use so-called baby RICO laws, intended to undercut organized crime, to attack abortion providers, citing violations of Comstock as a predicate offense. Students for Life, another prominent group, also has detailed state plans in place.
It’s certainly still possible that the Trump administration will take aggressive steps against abortion. He already threw a coded reference to fetal personhood in an executive order on gender identity. It wouldn’t surprise anyone to see the Trump Food and Drug Administration turn back the clock on the rules governing mifepristone to make the drug unavailable via telehealth. And it’s a near certainty that the president will stock the federal courts with more judges sympathetic to anti-abortion arguments. But Trump’s relative silence on abortion so far has been striking. So has the GOP’s meek approach on abortion legislation to date.
We can’t be sure what the party will do for the remainder of Trump’s time in office. But if the early signs are telling us anything, it’s that Republicans in Congress aren’t eager to take responsibility for abortion policies their base may want. That means we should keep an eye on regulators at the FDA, federal judges, and even prosecutors who Republicans can claim made an independent decision for which they can’t be blamed. Any path to a national ban will run through the same federal courts the anti-abortion movement once derided as antidemocratic for taking the issue away from the American people.
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