Reproductive health under a second Trump term

Trump’s allies are hoping another Trump victory will limit access to abortions, contraceptives, IVF, even recreational sex.

But they aren’t just hoping, they have detailed plans on how to do it.

Today, On Point: Reproductive health under a second Trump term.

Guests

Patrick Brown, fellow at the Ethics and Public Policy Center where he focuses on a pro-family agenda.

Grace Panetta, political reporter at The 19th – a nonprofit newsroom focused on the intersection of gender, politics and policy.

Transcript

Part I

MEGHNA CHAKRABARTI: Today in Washington, a case before the U.S. Supreme Court that could be yet another landmark regarding abortion in America. This case has to do with the drug Mifepristone. It’s used in medication abortions, which account for more than half of all abortions in the United States.

The case was filed back in 2022 by a group of doctors who oppose abortion and who claim that Mifepristone is unsafe and that the FDA acted unlawfully when it relaxed restrictions on access to Mifepristone. The FDA’s label for the drug shows that more than 99.4% of women who take Mifepristone do not require hospitalization or serious medical intervention.

The court is expected to issue a ruling in June. But regardless of the outcome, legal cases are only one way in which the Trump campaign and its allies are seeking to completely remake reproductive health laws and regulations in this country, should Donald Trump win another term in the White House.

Their aims are described in detail by a Heritage Foundation document called Project 2025. Mandate for Leadership: The conservative promise. It includes strict abortion bans. Restrictions on contraception and IVF. And formally changing the name of the Department of Health and Human Services to the Department of Life.

Notably, the goals would use the powers of the presidency via the executive’s control of federal agencies, and not Congress. Today we’re going to take a detailed look at what those goals are. And we will hear from Grace Panetta, political reporter for The 19th, a non-profit newsroom focused on the intersection of gender, politics, and policy.

She’ll join us in just a moment. But let’s begin with Patrick Brown. He’s a fellow at the Ethics and Public Policy Center, where he focuses on a pro-family agenda. And he joins us from Columbia, South Carolina. Patrick, welcome.

PATRICK BROWN: Meghna, thanks for having me on.

CHAKRABARTI: So first of all, in the case that Donald Trump wins another term in the White House, how far would you like to see another Trump administration go when it comes to changing reproductive health rules and regulations in this country?

BROWN: I think there’s a lot of room for a second Trump administration to certainly reverse some of the decisions that the Biden administration has made in the last three and a half years. The relationship between pro lifers and President Trump has always been a transactional one. And the first term was really focused on the getting Supreme Court justices appointed who were going to overturn Roe vs. Wade.

I think a lot of people feel like that deal was done and now it’s a question of what comes next. And there’s a lot of executive actions, as you mentioned, that I think there’s a lot of debate on the right about how far exactly, where those should go, but there’s agreement that a lot of the Biden administration and some of the late term Obama initiatives as well, were the wrong direction in terms of protecting moms, protecting babies and building a culture of life.

CHAKRABARTI: So specifically, let’s talk about some of the, you say it’s a debate, but some of the debated goals, if, should there be another Trump administration? First of all, an outright national ban on abortion. There are many who have called for that. It’s in the Project 2025 document from the Heritage Foundation.

Would you support that? Do you think it has sufficient traction that should there be another Trump administration, it could actually be on the agenda?

BROWN: No, I don’t think that’s realistic. I think, you look at the Senate, and there’s a lot of Republican senators who would feel queasy about the idea of a federal abortion ban.

Certainly, President Trump himself has talked about looking for something like a 16-week ban, which wouldn’t even touch the vast majority of abortions which take place before that amount. Before that length of gestation, so I don’t think that’s really realistic. I don’t think you’ll see action from Congress, especially with the Republican Party in the shape that it’s in right now.

But I do think, as you mentioned, there are a lot of executive actions and a lot of executive orders and that sort of thing that could be promulgated through the White House and through the Department of Health and Human Services that could move the ball forward on some of these contested issues like Mifepristone and Title X funding for agencies like Planned Parenthood and that sort of thing.

I think that’s probably where the bulk of the action will be.

CHAKRABARTI: So let’s talk a little bit more then about some of those proposals, because the Mifepristone one obviously is on the docket right now for the Supreme Court. What rollbacks would you and other advocates seek in a second Trump administration?

BROWN: Yeah, I think some of the ones that come top to mind are a lot of the executive actions that President Biden took in the wake of the Dobbs decision, really stretching the boundaries of the Hyde Amendment, which forbids federal money from going towards procuring abortions. And the Biden administration has been very creative, shall we say, in trying to make sure that money flows to states that are trying to enable women seeking abortions to do.

Also, some of the more recent decisions around IVF, the Department of Defense recently expanded its coverage of infertility services to not just cover married couples, but also single service members and veterans who want to go through infertility treatment through IVF. I think that’s something that you’ll see a Republican administration revisit. Because that brings a big question to the fore, right? What is the point of a service like IVF? Is it to surmount a medical problem like infertility or is it to remake the idea of family and having a child as something that an individual, that people should be able to do outside of the context of a committed relationship?

I think that’s going to be on the table if Trump wins in November.

CHAKRABARTI: But so the thing about America is that it is spectacularly diverse and making decisions about what families should look like, perhaps should not be in the government’s purview. Because you mentioned the Department of Defense. I wonder what would one say to a servicewoman, for example, who says she was also married to a fellow member of the armed services who died in combat, but he had preserved his semen beforehand, out of fear that possibly he would not ever be able to stay alive to become a father because of his service.

Should that now widowed servicewoman not have access to IVF as supported or paid through by the United States Defense Department?

BROWN: No, I think that’s a very different conversation, right? I think we’re talking, that’s in the context of a married relationship, even if one member has unfortunately died in the service of our country or some other tragic accident.

Obviously, I think treating that relationship as a widow and her deceased partner is very different than the idea of taxpayer funded promulgation of an idea that parenthood should be something that anyone should be able to do, outside of the context of a relationship.

And I think we’re seeing in blue states like Washington state, where I was born, and others who are trying to mandate that insurers treat single individuals the same as married couples when it comes to things like infertility treatment. And the research has shown, and there’s a recent book by the economist out of University of Maryland, Melissa Kearney, and others that we know that children do best in the context of a two-parent household.

And it would be a rather bizarre circumstance for the federal government to be on the one hand saying kids do best in a two-parent household.

We want to strengthen families and do the best we can for those kids, while also revisiting the definition of what a family is and trying to encourage more parents to be born to single parents through things like IVF.

CHAKRABARTI: Indeed, we actually had Kearney on the show to talk about the findings in her book.

It was a really interesting conversation, and the data is pretty strong. But as far as I understand it, and this question comes from just the history of the advances that the anti-abortion movement has made in this country. Plus, the details that are listed in that Plan 2025 document from the Heritage Foundation.

There seems to be a conflict which is very challenging for me to understand. Because on the one hand, a lot of the proposals, including ones that you mentioned, had to do with people of faith, say pharmacists or health care providers or insurance providers, not wanting the government to tell them that they must provide either financial or medical services to people who are requesting things that they personally don’t believe in by virtue of their faith or moral grounding.

They don’t want the government in their business. But on the other hand, these same laws, these same proposals would firmly put the government in the business of what a family looks like, what access women would have for care for their own bodies. Who actually would get to government support, regarding adoption, place children only in heterosexual couples as their new families.

Why is it okay for the government to be deeply involved in that sphere of American life, but not in the faith sphere.

BROWN: Yeah, that’s a big question. [That touches] on important principles of the First Amendment and what a society is around and who deserves protection. We had this big debate in the wake of the Alabama ruling that brought into question the legality of IVF in the state.

And it all hinges on what moral worth we assign to that unborn baby, as pro-lifers believe in the context of abortion. These are questions that are so fundamental to a democracy. About who is worthy of the protection of the law. And when you talk about things like conscious protections and other things like that, those are trying to maintain a certain degree of separation between a healthy civil society with a pluralistic view of what a flourishing life looks like.

And we’re all going to have disagreements about what that looks like. But when it comes to, again, that child in the womb and whatever moral status we want to assign to it, that’s where the government has a obligation, I would say, to step in. To say, if for example a woman who is thinking about choosing abortion has an obligation to care for that baby through nine months and beyond, perhaps. She has an obligation to that child, but also society has an obligation to her. To make sure that she has the support and the resources she needs to be able to do that, to not feel pressured by the economy, by her employer, by her boyfriend, whatever that situation may be.

These are tough questions that we have to grapple with, but they come back down to who are the parties involved? And oftentimes when we’re talking about things as personal and messy and intimate as abortion and reproduction, they involve a third party that is often forgotten. And that’s the unborn child.

CHAKRABARTI: So then once the child is born, right? Because, as you mentioned, you believe that the woman has an obligation to care for the child for the nine months in which the fetus is gestating within her womb. But then once the child is born, you said, and possibly after, shouldn’t there be more focus also on the after?

But I’m seeing kind of the opposite in terms of support in the Heritage Foundation document. For example, they’re saying we want to cancel Head Start. We ought to instead give tax credits to dads who aren’t paying for childcare, things like that that, that makes no sense, it seems opposite of what the goal should be.

BROWN: Yeah, the right, the political right has many differences of opinion. And obviously, I have friends at Heritage, and we’ve had friendly disagreements about what the right social safety net should look like, especially for pregnant moms, especially for that first year of life when so much has changed, often mom is still physically recovering, and there’s so much going on.

Broader funding for something like childcare, expanding the child tax credit. These are just low hanging fruit that I think a lot of Republicans actually in Congress could get onto supporting. And there’s a lot, we saw the modest expansion of the CTC already passed the House of Representatives.

Part II

CHAKRABARTI:  I’m sorry that I had to cut you off there just to take that quick break, but I wanted to give you a chance to complete your thought.

BROWN: Yeah, no I thank you for that. And I think Republicans need to do a better job of standing up for moms after the baby’s been born, thinking about ways that we can build a broader, more generous safety net.

Also catalyze the institutions of civil society that provide those key services to new moms. We’ve seen states like Texas, Indiana, North Carolina already do. And I think I like to hope that as we have these conversations about it building families and being supportive of building a culture of life that we are able to do so at the federal and the state level as well.

And I think you’ll see Republicans talking about that.

CHAKRABARTI: Do you have a concern that as we get further into the election season and more and more Americans find out about what some of these goals are from Heritage, from the Trump campaign, et cetera, the ones we talked about, but there’s also more. About restrictions on who could adopt a child, getting rid of some coverage for purchasing condoms, eliminating Plan B, things like that.

But the more people find out about this, it could actually backfire. Because we saw that with the IVF ruling in Alabama.

BROWN: Yeah, totally. I think that’s a real concern for Republicans. And we’ve seen, ever since the Dobbs decision and the IVF ruling, the Supreme Court case that you mentioned today, Republicans freeze like deer in the headlights.

They don’t want to talk about this. They’re not comfortable. They had 50 years where they were able to say, I’m pro-life, but Roe is the law of the land, and we’re going to try to nibble around the edges. And now they’re in the uncomfortable position for an elected official of having to try to change hearts and minds on something that, again, is very personal to a lot of people.

I think Republicans need a little better job of thinking about what an actual pro-life position is. And we’ve seen this in the sort of confusion about the Life at Conception Act, which is something that’s being pushed forward by a number of conservative members of the House of Representatives, which would directly implicate the way the IVF is practiced in the United States. There’s ways to reconcile that, to square that circle. To say, look, the IVF industry is the wild west in the U.S. compared to how it’s done abroad. But a lot of Republicans don’t even have the baseline knowledge to be able to make that case in the public square.

And I think a better job of, obviously, in an election year, if you’re explaining you’re losing, but I think there’s a need for Republicans to do a little bit more thinking and a little more PR work rather than just trying to pivot to what about the border or the economy?

CHAKRABARTI: But when you say having to change hearts and minds, what you’re also saying is that these goals are wildly out of step with what the majority of Americans wants.

That’s why the Republicans would have to, quote, change hearts and minds. The vast majority of Americans want access to contraception, including Republicans. The vast majority of Americans want people who need it to get IVF. Why pursue an agenda that’s actually completely misaligned with what the majority of Americans want?

BROWN: Yeah, no, I think that’s a fair question. I think with any political movement, there’s always going to be a tension between doing what’s right and doing what’s popular. And I am very much of the mind that a lot of the goals, I don’t want to say everything in the Heritage Report or that’s being talked about on the Hill is the right goal necessarily, but directionally, a lot of them care for, treat the fetus or the embryo with a respect that deserves and all the implications that flow from that.

But if you’re a political party, you have to balance that with a lot of other competing interests and institutional commitments. And so if you’re a Republican, you may want to think about some of the other positions that you’re taking that are also very unpopular, being opposed to greater taxes on the rich, maybe, or something like that, and saying, maybe some of these other positions are ones that we should soften in order to bolster support for some of these that we know are not majority positions, right?

But we also know that polling around abortion is very complex. Polling around things like, again, First Amendment protections for people who are in the healthcare industry and that sort of thing. Those are naughty issues that we have a difficult dealing with at a federal level, and there’s a need for greater flexibility in a lot of these things.

I think Republicans, if they had a little more steel in their spine would do a better job of explaining that these are debates that are worth having because they touch on these very real questions about what a society is, what a family is, and what should we be prioritizing.

CHAKRABARTI: Patrick Brown is a fellow at the Ethics and Public Policy Center where he focuses on what’s called a pro-life.

Excuse me, a pro-family agenda, and he’s with us from Columbia, South Carolina. Patrick, thank you so much for joining us today.

BROWN: Meghna, it was great. Thanks so much.

CHAKRABARTI: Let’s bring Grace Panetta into the conversation now. She’s a political reporter at The 19th. It’s a non-profit newsroom focused on the intersection of gender, politics, and policy.

Welcome to On Point, Grace.

GRACE PANETTA: Hi, Meghna, thank you so much for having me.

CHAKRABARTI: So we’re going to dive deeply into the specifics of the proposals and goals that Heritage and other groups have put out if there’s indeed a second Trump administration. But before we do that, I was wondering if I could get your analysis on what you heard Patrick say, especially that he acknowledges that Republicans or the Trump campaign itself have, they’re trying to thread a very narrow needle, if it’s possible at all regarding their goals for radically reforming, let’s say, the Department of Health and Human Services versus what the vast majority of Americans want.

PANETTA: Absolutely. I think that’s correct. I think Patrick spoke really well to that. And there is also a difference between Former President Trump as a figure and your average Congressional Republican. Congressional Republicans have to face reelection more often. And they’ve, in many cases, really been hesitant to stake out a clear position one way or the other.

That is not the case for many of those who have been allied with the former president and really see his second term as a critical way to really enact some of these further restrictions on abortion that could be quite consequential. So it is absolutely attention and it’s not something that is going to be easily resolved.

And it’s not something that the GOP as a party has a clear answer for either. That they can present to the voters this fall.

CHAKRABARTI: What do you think of the fact that all of these proposals, if Trump wins again, would be enacted through the executive branch, through regulation changes essentially in the various federal agencies.

Now, Republicans would look at that tactic as something that Democrats have used, you know, quite effectively. Say, for example, in environmental regulation. But is this a new tack for the anti-abortion constituency in this country? Because as today’s SCOTUS case reveals, they’ve been very successful in recent years on the legal path.

PANETTA: Yeah, that’s a great question. I don’t know that it’s necessarily new. I just think the executive branch has come even more into focus and is that more consequential now that there is no longer the protections of Roe v. Wade in place. And we’re currently seeing the Biden administration, the Department of Justice is defending things like access to Mifepristone and what they say is emergency abortion care at hospitals. That could all be completely reversed under a Trump administration and there’s no more Roe v. Wade way to stop it. And, as Patrick noted in the last segment, it’s unlikely that Congress will do anything significant on abortion in the near term.

So I think it’s just a shift in power and it also represents a shift within the GOP, from saying, “Oh, the party of small government, less government intervention.” To now people who are aligned with the former president Trump are saying, “No, let’s use the government.

Let’s use all the levers of power that we can to enact this agenda.”

Because for anti-abortion groups, it absolutely did not stop with the Dobbs decision. And I think, really, the Supreme Court arguments today are just the opening salvo of what we’re going to see.

CHAKRABARTI: Grace, with your expertise in reporting, I’d like to do that deep dive into, specifically, the Heritage Foundation’s plan and also what the Republican Study Committee has put out in terms of bills that they would support next year.

Because I think the details are very revealing, right? We can talk about politics all we want, but the specific policy proposals are quite eye opening. I read the whole chapter yesterday again on the reforms that they’d make for HHS. So let’s hear them.

First of all, this is Roger Severino. He’s the vice president for domestic policy at the Heritage Foundation, which wrote the Project 2025 many hundred-page document. He specifically wrote the section on health policy. And in that section, there are many proposals on reproductive health. So let’s start, first of all, by talking about their calls for a federal ban on abortion.

And Grace, to your point, something that anti-abortion activists and Heritage have been pushing for since the Dobb decision that overturned Roe v. Wade. So here’s Severino talking about that on the day of the Dobb ruling, June 24th, 2022.

ROGER SEVERINO: The federal government has an absolute role in this. There cannot be now two Americas, one America where unborn life is protected, and another where unborn life is treated as the equivalent of medical waste, that is untenable. We went through this with the civil rights struggle. We suffered with two Americas for far too long, and it took the Civil Rights Act for Congress to step forward and saying enough is enough.

And there’s a role to play here. Justice Kavanaugh in his concurrence said that there’s a role for state and Congress, it was very specific in state and Congress to finally settle these questions. This has to be settled nationally. A House divided against itself cannot stand. We can’t have two classes of Americans.

So Congress has to step forward and protect them more in life.

CHAKRABARTI: That’s Roger Severino of the Heritage Foundation. Now very recently, March 18th, in fact, of this year, Donald Trump was asked by a Fox News host, Howard Kurtz, about whether he supported a 16 week ban on abortion. And here’s what Trump said on the show Media Buzz.

HOWARD KURTZ: The New York Times piece by Maggie Haberman and others says that you have discussed with your advisers having a ban, the possibility of a ban on abortion after 16 weeks. Plus, the three exceptions that I know are important to you. Rape, incest, life of the mother.

DONALD TRUMP: Very important.

KURTZ: Now I don’t know if it’s possible to make both sides happy in this debate, because people have such strong moral feelings.

But you were quoted as saying to one of your aides, I like 16 weeks because it’s a nice round number for months. Do you think that could be politically acceptable?

TRUMP: So we’re going to find out and pretty soon I’m going to be making a decision. And I would like to see if we could do that at all.

I would like to see if we could make both sides happy.

CHAKRABARTI: Donald Trump on March 18th. Now Grace, a federal ban on abortion, would that require Congressional legislation, or is that something that a president could do through the federal agencies?

PANETTA: It’s a good question, and there are really two pathways.

The less probable option is for Congress 60 votes in the Senate to pass a law that, for example, says abortion is illegal nationwide. After 16 weeks of pregnancy, and that would apply to all, presumably, we don’t know the specifics of the bill. Trump says he’s going to tell us, we’ll see. That would presumably apply to all forms of abortion.

It would mean that states, blue states that have more permissive laws, that would override those rules and have, really apply to kind of all forms of abortion. The other pathway, which is something that the Heritage Foundation and Project 2025 and many anti-abortion advocates have been promoting, is this idea of using federal regulations and federal agencies to restrict the proliferation of medication abortion drugs, like Mifepristone.

They’ve talked about invoking a 19th century obscenity law, the Comstock Act, to do this in order to restrict the mailing of both abortion pills and any materials that could potentially be used in abortion and potentially expand that too, to contraception, emergency contraception. And that would essentially, constitute a federal ban.

CHAKRABARTI: Okay, Grace. So you mentioned the Comstock Act. I want to talk about that a little bit more, because it gives us a clearer picture about what the basis is upon which these proposals are being made. Comstock Act, 1873, right? And it defined contraceptives as obscene and illicit, right?

So that very act, it’s 1873, did this. And so there would be looking back to it, even though, obviously, the law has evolved since then.

PANETTA: Yes, and we’ve seen this also in the states, too, with abortion bans and restrictions from the 19th century suddenly coming back to life and gaining a new life after the Dobbs decision.

And the Biden administration issued a memo in 2022, the Department of Justice, stating that they do not believe that the Comstock Act applies to the mailing of Mifepristone. So it’s currently not being enforced, but that could absolutely be reversed under a Trump DOJ. There would certainly, I expect, to be legal battles, but it is a very real threat that this law could be applied that way.

CHAKRABARTI: So then in also, in the purview of birth control and contraception, there’s also another point in the Heritage document about retail pharmacies. And rolling back Biden, I think it’s Biden administration rules, that require all retail pharmacies to carry certain forms of contraception. But that another Trump administration would seek to undo that for pharmacies or pharmacists who don’t want to, based on their religious preferences.

PANETTA: Yeah, absolutely. And pharmacies, we’ve seen be really important in this post Dobbs world. The Biden administration, the FDA issued new guidance, allowing drugs, abortion drugs to be dispensed more easily at pharmacies, that could definitely be reversed under a Trump administration.

And you’re right. There are ways in which pharmacists could be given more leeway to not prescribe drugs that they disagree with, but I think that is absolutely given how important medication abortion is to the overall abortion access landscape.

I think pharmacies and regulations around that are going to be really key.

CHAKRABARTI: So then also regarding sex education as a whole, I was really interested to see that there’s a lot of language in these proposals to expand access to quote fertility awareness-based methods of family planning. Can you talk about that a little bit?

PANETTA: Yeah, so I think this is a movement coming from a segment of the right that disagrees with things like access, availability of contraception and use of hormonal birth control and really is against recreational sex. This is something the Heritage Foundation has come out and posted on social media that they want to return the consequentiality to sex.

And I think that’s very much part of it. We know that abstinence education, abstinence-based sex education does not work in terms of actually reducing unwanted pregnancies, but it’s not really about that. It’s about this overall ideology that is opposed to any kind of recreational sex and sex that is not done in the service of procreating and creating a child.

CHAKRABARTI: Now, just to give a more specific definition of fertility awareness methods, actually Planned Parenthood has a really excellent page on this and says there’s several things that a person can do. A woman can track her period. They’ll also take your temperature every day.

Track bodily secretions, which help a woman get a better understanding of when she might be ovulating. And it was interesting to me. Because I think this is the science that the Heritage Foundation and others are pointing to when they say these are effective methods of birth control.

Depends on what you mean by effective. Fertility awareness ranges from, according to Planned Parenthood, 77% to 98% effective. Very wide range there, where if you compare it to IUDs, it’s 99% as IUDs in terms of effectiveness at birth control. So we just got a few seconds left until our next break, Grace.

So what I’m going to do is I want to read a paragraph from the Heritage Foundation’s plan that really jumped out at me. And then we come back from the break, I’m going to ask you what you think about it, okay? Because it’s this paragraph that says, The Life Agenda.

“The office of the secretary should eliminate the HHS reproductive healthcare access task force and install a pro-life task force to ensure that all of the department’s divisions seek to use their authority to promote the life and health of women and their unborn children.

Additionally, HHS should return to being known as the Department of Life. By explicitly rejecting the notion that abortion is health care and restoring its mission statement under the strategic plan and elsewhere to include furthering the health and well-being of all Americans, quote, ‘from contraception to natural death,'” end quote.

So that’s the heart of the agenda here. Grace when we come back, I want to hear your thoughts about it. This is On Point.

This article was originally published on WBUR.org.

Copyright 2024 NPR. To see more, visit https://www.npr.org.