New Bedford Light | Reproductive rights experts wary of more restrictions
“We spend a lot of time doing scenario planning for a Harris administration and a Trump administration. … We are making sure we are prepared no matter who becomes president.” — Rebecca Hart Holder, executive director of Reproductive Equity Now
Massachusetts is known as a blue state where access to abortion is one of the most expansive, but legal and reproductive health experts caution that the promise of continued care is tenuous, even here, if former President Donald Trump is re-elected.
Experts are concerned a second Trump administration could use existing federal law — the Comstock Act of the 1870s — to knock down access across the country. Though they are doubtful that a national abortion ban would pass Congress, they are contemplating an administration that can have a national impact on abortion access, through funding and new appointees to lead key regulatory agencies.
Trump has equivocated on abortion rights, stating in recent remarks that the federal government should avoid the issue. But his running mate, U.S. Sen. J.D. Vance, and many conservative supporters have proposed federal action against abortion that could have far-ranging impacts. Vice President Kamala Harris, the Democratic nominee, in contrast, has made abortion rights a major issue in her campaign, using clearer language that President Joe Biden has shied away from.
“It’s very important that people understand that it is not just about the state,” said Jolynn Dellinger, a lecturer at Duke University School of Law. “It is very much about what can happen on a federal level.”
Legal landscape
Massachusetts codified access to abortion in the state constitution in 2020. Then, in the summer of 2022, the U.S. Supreme Court overturned Roe v. Wade, which for nearly 50 years had established abortion as a constitutional right in all states.
The Dobbs decision kicked the issue to states to decide if and when abortion should be allowed. At least a dozen states banned it outright. Others, like Massachusetts, took action to further protect it.
Last year, for example, when access to abortion medication was threatened in federal court in Texas, in a lawsuit against the U.S. Food and Drug Administration, Massachusetts Gov. Maura Healey reacted by issuing an executive order and stockpiling 15,000 doses.
Massachusetts also passed a “shield law” in 2022 in response to the Dobbs decision, as did several other states, including New York and Vermont.
The law protects people from out-of-state civil or criminal investigations, lawsuits, or prosecutions for accessing, helping others access, or providing legal abortion care in Massachusetts. It covers patients, providers (including pharmacists) and helpers (like someone who drives a patient to a clinic across state lines).
However, the law’s protections end at the state border. They cannot apply to people when they are in or return to a state where such abortion care is illegal.
Experts expect Massachusetts will continue to play an outsized role in providing care to people from states with restrictions or bans. But, they are also planning for the possibility that conditions could change under a new federal administration.
They are keeping an eye on an old set of laws passed in the 1870s: the Comstock Act. When written, it banned the mailing of any “lewd or lascivious material,” including any “instrument, substance, drug, medicine, or thing” that could be used for abortion.
The Biden administration, through the Department of Justice in 2022, issued a memo stating in clear terms that the Comstock Act does not prohibit the mailing of abortion medications for legal use. But a future administration could act differently, said Rachel Rebouché, a professor in reproductive health law and dean at Temple University.
“A Trump administration could decide it believes Comstock should be enforced as a nationwide ban. It doesn’t matter if you live in Massachusetts or Texas,” Rebouché said.
Legal experts say that a conservative administration could try to use Comstock to ban sending abortion medication by mail, or it could try to extend it to a complete ban on surgical abortion. The federal government could take the position that it is a federal crime to mail anything that can procure abortion, whether it be pills or medical supplies that clinics require for surgical abortion, Rebouché explained.
“The reason people are worried about Comstock is that it is a de facto ban that doesn’t need anybody from Congress to do anything,” Rebouché continued. “It’s an end-run around the democratic process of passing abortion law.”
A Republican Congress could attempt to ban abortion nationwide. But with election forecasts suggesting a closely divided House and Senate, abortion opponents may not have votes to do so.
Mifepristone pill packs. The medication is part of a two-part regimen used for medication abortion. Anastasia E. Lennon
“I think [Comstock is] more likely than a new congressional action here,” said Dellinger. “There is a very real risk that people will absolutely make that effort and that would interfere with everybody’s access, whether you live in a shield state or a banned state.”
Rebouché said the FDA under a Trump administration could also change its position in how it decides to defend itself in legal challenges against the abortion pill, mifepristone, which could affect access in Massachusetts.
The agency could also roll back its approval for the medication to be dispensed via telehealth, which would have implications for people who cannot afford to travel to a doctor and obtain the medication in person, Dellinger said.
She listed several other agencies that have played a role in reproductive access nationally: the Federal Trade Commission (FTC), Health and Human Services (HHS), and the United States Postal Inspection Service (USPIS).
Under the Biden administration, HHS issued guidelines to protect patient records, and the FTC upped protections of location and health data that brokers sell or trade, which can show whether someone went to an abortion clinic.
If Comstock were to be enforced differently by a future administration, USPIS could surveil and intercept packages, she said.
Uncertainty about Trump’s plans
Trump has equivocated on abortion and reproductive rights.
This month, Trump posted on social media that he would veto a national abortion ban, AP News reported, but the month prior, he declined to say whether he would during his debate with Vice President Kamala Harris.
In August, he said he would not use Comstock to ban the delivery of drugs if he is elected, telling CBS News that the “federal government should have nothing to do with this issue.”
But his running mate, U.S. Sen. J.D. Vance, signed a letter last year urging the Justice Department to use Comstock to prosecute the “reckless” distribution of abortion drugs by mail, Politico reported.
“[Vance] urged the DOJ to weaponize Comstock to criminalize abortion providers. Trump chose a like-minded running mate in Sen. Vance,” said Rebecca Hart Holder, executive director of Reproductive Equity Now, a reproductive rights advocacy organization.
Project 2025, which offers policy proposals for a potential conservative president to implement starting next year, has also contributed to Holder’s concern. Abortion is mentioned nearly 200 times in the 900-page policy document, titled “Mandate for Leadership” and published by the ultra-conservative Heritage Foundation.
Trump has distanced himself from Project 2025, but CNN has reported that more than 100 people who worked in the Trump administration were involved in the project.
Rebouché noted that Project 2025 calls for applying Comstock to restrict abortion medication.
It proposes: “Stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs.” The citation links to Comstock by its federal code: Section 1461 of title 18.
Funding
Leaders of New Bedford and South Coast organizations are also contemplating what could happen to funding they receive from the federal government.
“There’s a lot that can be done with the power of the purse,” Rebouché said.
MaryRose Mazzola, director of external affairs at the Planned Parenthood League of Massachusetts, said she is nervous about a reduction or cutting of federal funding under another Trump presidency.
In 2019, the Trump administration, through HHS, issued a new rule barring Planned Parenthood and other organizations that accept specific federal funding from making abortion referrals. The Biden administration reversed the rule.
Julia Kehoe, president of Health Imperatives, which operates seven clinics in the region, including in New Bedford, said the organization was impacted by the 2019 rule.
“We and other providers in Massachusetts decided to return federal money,” Kehoe said, so that the clinics could continue to provide its full range of health services, including referrals for abortion. The state appropriated money instead.
PPLM also benefited from the state’s response in 2019. The organization provides a full spectrum of services in addition to abortion, including testing for sexually transmitted infections, cancer screening, and gender-affirming care.
In the past, PPLM has used federal funds to develop sex education curriculum, and currently is using more federal funds to study whether the curriculum has been effective in preventing teen pregnancy.
But this month, Vance told reporters that the Trump administration would defund Planned Parenthood: “Our view is we don’t think that taxpayers should fund late-term abortions … That has been a consistent view of the Trump campaign the first time around. It will remain a consistent view.”
In Massachusetts, more than 70% of abortions were at zero to eight weeks of pregnancy in 2022, or within the first trimester, per Massachusetts Department of Public Health data; 2023 data has not yet been released.
Myrna Maloney Flynn, president of Massachusetts Citizens for Life, which opposes abortion, declined to be interviewed by phone for this story, but in an email said, “Regardless of who wins the presidential election, our preborn daughters and sons here in Massachusetts will still be denied the right to life.”
“‘Reproductive rights’ and ‘abortion rights’ do not apply to these human beings,” she continued. “Every voter should understand that unborn infants even up to birth are not legally protected from abortionists.”
Maloney Flynn expressed skepticism over the 2023 state data not being public yet, stating she believes it is being intentionally withheld until after the election.
When The Light requested the latest data this month, staff with the state Department of Public Health in an email said that the agency started collecting additional fields of data last year, which is causing delays with the reporting facilities compared to previous years.
Looking ahead
Local organizations have been keeping busy in the run up to Nov. 5. Many are nonprofits and cannot endorse a candidate, but they focus on education and voter registration.
“[We’re] educating people about the issues going on and what this means for people in our community,” said Gail Fortes, executive director of the YWCA of Southeastern Massachusetts and co-chair of the local Our Bodies Our Lives coalition. “It’s not just abortion,” but also about access to contraception, in vitro fertilization and other health services.
Christine Monska, executive director of the nonprofit Women’s Fund South Coast, said the organization will have to “wait and see.”
“There is so much uncertainty right now on what it means for democracy, what it means for women and nonbinary folks,” Monska said. “We know there are still issues. We know there are stigmas on people trying to access services and issues in accessing in-clinic abortion. We know we have people going to Providence or Boston or Attleboro.”
Medication abortion only became more accessible for the region last year, but the closest clinics that provide surgical abortion are at least 30 to more than 50 miles away.
Monska wants to address these issues by expanding the organization’s funding and bringing more staff on board to conduct research despite the outcome of the election, but notes “obviously we need to follow the law.”
“We spend a lot of time doing scenario planning for a Harris administration and a Trump administration, but I don’t want to tip my hand too much,” Holder, of Reproductive Equity Now, said. “We are making sure we are prepared no matter who becomes president … We are thinking creatively about how to continue to ensure there is access.”
Kehoe said she’s very concerned a second Trump term could lead to “further erosion of the rights” of people who can get pregnant.
“We are still planning to do what we’ve been doing,” she said, “which is provide access to comprehensive sexual reproductive health care, including abortion services, regardless of the outcome of the election.”
