Trump Might Have Just Signaled a Momentous Change on Abortion

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Last week, the Food and Drug Administration launched a study of the safety of mifepristone^[2], a drug used in more than half of all abortions nationwide^[3]. A letter signed by FDA Commissioner Martin Makary and Health and Human Services Secretary Robert F. Kennedy Jr. announcing the study cited a report by the Ethics and Public Policy Center^[4], a conservative Christian advocacy group, as one basis for the new government study. The EPPC study wasn’t peer reviewed and received harsh criticism^[5] from physicians, but it was central to a broader pressure campaign to get the Trump administration to crack down on abortion. To date, the administration has mostly avoided the abortion issue, fobbing off anti-abortion activists and Republican senators with vague promises. The latest pledge to conduct yet another study of mifepristone might be more of the same. But there’s reason to believe that this time, the Trump administration might give in to pressure to institute sweeping national restrictions.

There was a clear political logic to Trump’s previous position. He once blamed the abortion issue for costing his handpicked candidates in the 2022 midterms^[6]. Abortion was clearly a losing issue for the GOP, and so Trump finessed the topic in 2024 by pledging to do very little—to “leave it to the states^[7].” Unsurprisingly, that wasn’t good enough for the anti-abortion movement once Trump was in office. All three branches of government are, at least in theory, in the hands of Republicans who believe that life begins the moment an egg is fertilized. But polls^[8] continue to suggest that a majority of Americans^[9] (and an even higher percentage of women) support legal abortion. The results of several successful ballot measure fights to secure abortion rights in red and purple states reinforce the same thing^[10]. Trump is stuck between pleasing anti-abortion stalwarts and reviving an issue that will like hurt his party. So far, the administration has been playing for time. In their periodic appearances before Congress, Makary and RFK have made sympathetic noises about the dangers of mifepristone without committing to anything.

But it seems that dodging the issue won’t be possible forever, due in large part to the conservative federal courts that Trump himself has transformed. The administration is locked in a lawsuit filed by a group of conservative attorneys general^[11] challenging the current rules governing mifepristone. The case argues that the FDA didn’t have the authority to approve mifepristone or permit telehealth access to it.^[12] The attorneys general focus on arguments about the Comstock Act, a 19^th-century zombie law^[13] that abortion rights foes are trying to revive as a national abortion ban. The attorneys general read the Comstock Act as a no-exceptions ban on mailing or receiving any abortion-related drug or paraphernalia—one whose criminal charges could apply even to pregnant women^[14]. They argue that the FDA couldn’t have authorized current rules, which permit telehealth use of mifepristone, when mailing the drug is a federal crime. The Trump administration had tried to get out of this case too by arguing that the original plaintiffs—the attorneys general of Missouri, Kansas, and Idaho—couldn’t identify the kind of real injury necessary to have standing to sue^[15]. Worse, the administration argued, they had no reason to be in Texas federal court when none of their supposed injuries had anything to do with the state.

But now, a new group of plaintiffs are seeking to join the case^[17], including the attorney general of Texas itself^[18]. The plaintiffs also include Louisiana Attorney General Liz Murrill, together with a Louisiana woman^[19] who claims she was coerced by her boyfriend to take abortion pills.

These attorneys general were already on a mission to destroy shield laws, which attempt to protect providers and residents of states that support reproductive rights from criminal and civil consequences in states with abortion bans. Ken Paxton, the Texas AG, has been fighting to enforce a civil judgment against a New York doctor; the Louisiana attorney general has sought to extradite physicians from both New York and California to face criminal charges in the state^[20]. These moves could serve as evidence that shield laws are actually causing their states harm—and that their standing arguments carry weight, in contrast to what Trump’s Department of Justice has argued about the other AGs previously involved in the case.

But all the attorneys general need to do is convince Matthew Kacsmaryk, the most anti-abortion judge in the country, that they have a right to be in court. There’s no reason to think that will be especially hard. The newest crop of plaintiffs may have forced the administration into a corner—putting off a decision on mifepristone regulation and the Comstock Act is no longer really possible if the administration has to give its position in court.

Then there’s the fight over those shield laws. Paxton has already argued that New York’s refusal to enforce a civil judgment against a shield doctor violates the full faith and credit clause of the Constitution^[21]. Sooner or later, that clash will head to the Supreme Court. It will be hard for Trump to hide behind the idea of states’ rights when the states are at war with one another.

It’s still possible that the FDA study promised by Makary and RFK Jr. is another delay tactic, but there’s reason to think there could be something more to it. If it seems increasingly likely that the courts could force Trump to take a position, the administration may prefer to seize control of the narrative first. A ruling based on the Comstock Act could force the administration to explain whether the president thinks that the nation has a de facto national abortion ban based on the moment of fertilization. A Supreme Court decision on the fight over shield laws could expose how Trump can’t be neutral when states battle one another over reproductive rights.

The HHS letter lays out a possible blueprint for what could come next: fusing a longstanding anti-abortion argument that abortion hurts women with MAHA convictions that existing public health institutions aren’t worthy of trust. Since the 1990s, abortion opponents have argued that the procedure has devastating physical and psychological impacts. After the court overturned Roe, prominent groups like the Alliance Defending Freedom (which is helping Louisiana in the mifepristone case^[26]) updated these arguments to attack mifepristone. The EPPC study—and another commentary like it^[27]—were meant to give the administration political cover to endorse these claims. Trump could say his previous commitments about opposing a national abortion ban and leaving the issue to the states weren’t lies; they were good-faith mistakes based on incomplete information. And the idea of a new study of mifepristone is made to appeal to RFK, who urges Americans to distrust public health authorities and conduct their own research about everything from Tylenol to vaccine safety.

It’s not even close to a sure thing that Trump is drifting toward sweeping new abortion restrictions. But increasingly, not taking sides doesn’t look like it will remain an option.

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