Kamala Harris at a Fight For Reproductive Freedoms event in San Jose, Calif.Justin Sullivan/Getty
The contrast between the intentions of former President Donald Trump and Vice President Kamala Harris on reproductive rights could not be clearer—no matter how much Trump tries to suggest otherwise.
Trump appointed three of the five Supreme Court justices who overruled Roe v. Wade and has famously flip-flopped on his stances on abortion. Back in 2016, for example, he briefly floated the idea of punishing women who get abortions, but then, following public outcry even from some anti-abortion groups, his campaign walked that back. At his debate with Vice President Kamala Harris last month, he twice refused to say whether or not he would veto a federal abortion ban if Congress passed one—and then claimed earlier this month that he would. And in August, Trump appeared to suggest he would vote to expand abortion rights on the ballot measure in Florida, where he maintains his Mar-a-Lago estate and where abortion is currently banned at six weeks’ gestation; just a day later, he reversed course following backlash from the anti-abortion crowd.
Harris, on the other hand, has consistently campaigned as a vocal supporter of abortion rights. She has highlighted the fallout of the overruling of Roe for women in need of abortion care, and warned about the likelihood of Republicans’ passing a national abortion ban if Trump is reelected. In her presidential campaign, she has promised voters her administration would pass a law that would “restore reproductive freedom.”
But there’s a problem, even should she win. Any hope for such a law depends on Democrats winning control of Congress, which looks unlikely. (When confronted about this, Harris has called for ending the filibuster to make it easier for such legislation to pass.) For some advocates, the promises Harris makes also lack any details of what protections she would support and how her policies would move beyond Roe—if at all.
Roe was “the ultimate floor, and not the ceiling, of what we need for making abortion affordable and accessible for all who need it,” Nourbese Flint, president of the advocacy group All* Above All, told me. Under Roe, states were still permitted to restrict abortion access after the point of so-called fetal viability, and it did not protect women from criminalization over their pregnancy outcomes, including when they used abortion pills to end their pregnancies without supervision from a doctor.
Even if Republicans do win Congress, as president, Harris would still have options to protect and expand abortion access—options that appear on a reproductive freedom wish list supported by hundreds of advocates. Several told me that they are still waiting to see more specific details on abortion access and justice policies Harris would support—and they are hoping those details would go beyond restoring Roe. “That is not a useful campaign slogan, to say we’re going to restore the bare minimum,” said Renee Bracey Sherman, author of the new book Liberating Abortion.
(A spokesperson for the Harris campaign did not respond to questions from Mother Jones for this story.)
Despite President Joe Biden’s reluctance as a devout Catholic to express full-throated support for abortion rights, legal experts say his administration has gotten behind measures that have prevented some of the most extreme Republican efforts to further criminalize abortion. Biden’s Department of Justice, for example, issued guidance in December 2022 saying that the Comstock Act—a 19th-century anti-obscenity law—cannot be marshaled to ban the mailing of abortion pills, as Project 2025 and anti-abortion Republicans argue it can.
Rachel Rebouché, Dean of Temple University’s law school and an expert in reproductive rights laws, notes that if right-wing judges—including those on the Supreme Court—ruled that Comstock should be applied to criminalize the mailing of medication abortion, a Harris-run DOJ could simply refuse to prosecute such cases. This is a place, she says, where Harris potentially “has the most power.” Meanwhile, Project 2025 explicitly recommends that the DOJ prosecute those who provide and distribute the pills under a Trump presidency.
Her administration could also continue, and even strengthen, Biden’s Department of Health and Human Services attempts to require hospitals—even in states with bans—to provide emergency abortion care when necessary to save the parent’s life or protect their health. Legal challenges took that case to the Supreme Court earlier this year, where the justices ultimately punted on interpreting the federal law’s applicability to abortion care in emergency situations. Project 2025, on the other hand, claims that “EMTALA requires no abortions” and says HHS should stop investigating hospitals that have failed to comply with its interpretation of the law.
Under Biden, the Food and Drug Administration made the two pills used in medication abortion—mifepristone and misoprostol—easier to access by repealing restrictions that required them to be picked up in person. They now can be ordered online and delivered by mail. (As I have reported, this method now accounts for about 1 in 5 abortions nationwide). Under Harris, the FDA could remove even more restrictions that remain on medication abortion—including limits on who can prescribe them—according to Elisa Wells, co-founder of Plan C, a resource that provides information on how to access abortion pills. “All of them need to go,” Wells told me.
While anti-abortion Republicans have baselessly alleged the pills are dangerous, more than 100 scientific studies have confirmed they are overwhelmingly safe and effective—including when they are prescribed virtually and mailed. The FDA, Wells said, should “update the approval to reflect science and not politics.” Project 2025 recommends the exact opposite: It says the FDA should immediately re-instate the in-person requirement to access the pills and in the longer term should revoke approval of the drugs entirely. But the FDA and HHS would likely face continued legal challenges if they did try to enact these protections—and the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo earlier this year, in which the justices vastly limited the power of federal agencies, could make it harder for those agencies to enact regulations protecting abortion rights, as my colleague Nina Martin has reported.
Perhaps the biggest challenge facing abortion access is the repeal of the Hyde Amendment, which prohibits federal funding for abortion with minimal exceptions, leaving millions of low-income people on Medicaid without insurance coverage for abortion. (Paying for an abortion out of pocket can cost upwards of $500, or far more in the second trimester, according to KFF.) This year and since 2016, the Democratic Party platform has called for the repeal of Hyde, and it was one of the campaign promises Harris made the first time she ran for the presidency in 2020. Biden, too, has repeatedly excluded Hyde from his proposed federal budgets over the last few years, but it has always reappeared in the finalized budget passed by Congress. Still, Rebouché says, Harris “could refuse to sign the budget until Hyde is gone.” Conversely, Project 2025 calls for strengthening Hyde and codifying it into law.
Flint, from All* Above All, which has campaigned to overturn Hyde, said the policy shows the ways that abortion can be inaccessible even if it’s technically legalized, as it was under Roe. “If we do not figure out how to get government funding,” she told me, “we are on the precipice of another crisis, where there’s going to be a lot of folks not being able to get abortions, regardless of whether it’s legal or not.”
“We are on the precipice of another crisis, where there’s going to be a lot of folks not being able to get abortions, regardless of whether it’s legal.”
Perhaps one of the most significant ways in which a Harris presidency could alter the reproductive rights landscape is one of the most obvious. “She could shape a Supreme Court that is not the Dobbs court,” Rebouché notes. Three of the current justices—including two conservatives, Clarence Thomas and Samuel Alito—are in their 70s, and could potentially retire during the next president’s term. As Rebouché sees it, it’s likely that a future liberal-leaning court shaped by Harris could one day undo Dobbs. “We should continue to talk about Dobbs just the way Alito described Roe: ‘Egregiously wrong’ and ‘erroneously’ decided.” The significance of Harris’ ability to pave the way for undoing Dobbs becomes all the more clear when one, again, looks at Project 2025’s plans: “The Dobbs decision,” it says, “is just the beginning.”
This summer, more than 380 reproductive rights and justice organizations and activists—including Flint’s All* Above All—signed onto a 17-page memo called “Abortion Justice, Now: Protecting Abortion At the Federal Level.” The brief primarily calls for passing federal legislation that abolishes the so-called viability line established in Roe and Planned Parenthood v. Casey. “We know that viability is directly connected to fetal personhood, which is directly connected to the criminalization of pregnancy,” Jenni Villavicencio, a practicing OB-GYN and one of the primary authors of the brief, told me. “We really want to call attention to anybody making policy, including a possible future Harris administration, that it is unacceptable to enshrine any sort of limit” for abortion access.
Two pieces of legislation—both introduced last year—are highlighted as model policies that could help expand access. The first is the Abortion Justice Act, sponsored by Rep. Ayanna Pressley (D-Mass.), which would establish a federal right to abortion without limits, provide $350 million in annual grant funding to support abortion access, and increase the number of abortion-providing facilities. The EACH Act, introduced by Sen. Tammy Duckworth (D-Ill.) would effectively repeal Hyde. Spokespeople for both politicians said that they, or their colleagues, plan to re-introduce some version of the legislation in the next session of Congress.
Major medical groups also support abolishing gestational limits from abortion policy, and in August, more than 400 physicians also signed onto a letter, spearheaded by the group Physicians for Reproductive Rights, asking Biden and Harris to support “moving beyond the legal framework created by Roe,” in part by supporting abortion access later in pregnancy. But the issue of gestational limits has long divided the reproductive rights movement, which has struggled to balance where to compromise in its quest for broad abortion rights, as my colleague Madison Pauly has reported. Notably absent from the signatories of the memo, for example, are some of the largest abortion rights groups, including Planned Parenthood Action Fund and Reproductive Freedom For All. (Spokespeople for those groups did not respond to requests for comment.)
For Democrats, this has long been a tough needle to thread. The anti-abortion right has argued that Democrats support abortions later in pregnancy or, as Trump has insisted without basis, “even after birth.” But more than 90 percent of abortions nationwide take place within the first trimester, according to CDC data, and many Democrats, including Harris, have said they support the viability limit that existed under Roe, with later-term exceptions for emergency complications. Harris reiterated that at her debate with Trump, when he repeated his lies about Democrats supporting infanticide.
As Bracey Sherman, author of Liberating Abortion, points out, many of the tragic cases the Harris campaign has highlighted—in which people with wanted pregnancies had miscarriages, nonviable pregnancies, or other health emergencies requiring abortion—may not have had different outcomes under Roe. “There is no evidence that those people would be helped because they would still be stuck with the same viability line and the exception line,” she said. “We need to be pushing for abortion access at any time, for any reason, for anyone, anywhere in this country.”
Villavicencio, for her part, says she recognizes the necessity of compromise in policymaking. “What we patently reject,” she adds, “is compromise when it is for people who are the most marginalized”—specifically the young, low-income people, and people of color, many of whom struggled to access abortion care under Roe. Under Harris, she and other advocates see a possibility for a fresh start. As Flint, of All* Above All, says, “We have an incredible opportunity in the ashes of Roe v. Wade to build the thing that our community needs.”
But that all depends on who wins on Tuesday.
Update, Nov. 1: This story has been updated to clarify the Biden administration’s interpretation that EMTALA requires hospitals to provide abortion care to protect patients’ health—not just their lives.
