A new presidency of Donald Trump risks encouraging attacks from conservative circles against the right to abortion in the United States, already spectacularly undermined during his previous mandate, according to experts.
The Republican candidate prides himself on having, through his appointments of three conservative judges to the Supreme Court of the United States when he was president, brought about the June 2022 decision canceling the federal guarantee of the right to abortion.
Through this reversal of half a century of jurisprudence, the Supreme Court has given States full latitude to legislate in this area.
At least 20 of them have since put in place partial or total restrictions on voluntary termination of pregnancy (abortion).
Donald Trump is currently being more cautious on the subject, recognizing the unpopularity of positions that are too hostile to the right to abortion, the majority of public opinion being in favor of it.
Her Democratic opponent, Vice-President Kamala Harris, has made the defense of this right one of her main campaign themes.
The fight between supporters and opponents of this right is now taking place mainly at the state level.
But a new Trump administration could be tempted to use the levers of the federal state to push it back further.
Towards a ban?
The nightmare scenario for abortion rights activists would be that of a Congress dominated by Republicans who could enact new restrictions, or even, in extreme cases, a ban, this time with a national scope.
In the event of a Donald Trump victory, even without Republican control of Congress, the billionaire could also “do a lot of damage in terms of access to abortion,” warns Lewis Grossman, professor of law at the American University, in Washington.
One of the most obvious targets, according to specialists, is the abortion pill mifepristone, used in nearly two-thirds of abortions in the United States.
In June, the Supreme Court rejected the appeal of associations of doctors and practitioners hostile to abortion against a series of reductions by the American Medicines Agency (FDA) in the conditions of access to mifepristone.
A new Trump administration could reverse some of these reductions, by restoring via the FDA the obligation of prescription exclusively by a doctor or by prohibiting the sending of the pill by post, explains Sonia Suter, professor of law at the university George Washington.
Resurrect a law from 1873?
Another option would be to resurrect a federal law adopted in 1873 and which had fallen into disuse, the “Comstock Act”, which prohibits the mailing of “obscene” materials, a category encompassing both pornography and any object that could be used for contraception or abortion.
The Department of Justice of the outgoing Democratic administration officially affirmed in 2022 that this law could not apply to mifepristone.
But, given the very broad wording of the text, its reinstatement could lead to “a de facto national ban on abortion,” warns Sonia Suter.
The power of appointment of federal judges by the President of the United States could also allow Donald Trump, who has already used it extensively during his mandate, to reshape the judicial system in an ultraconservative direction and thus indirectly influence the law. to abortion, underlines Lewis Grossman.
In the event of a Republican victory on November 5, abortion rights activists assure that they will not remain idle while waiting for the new president to take office on January 20.
“If Trump wins, there will be a lot to prepare for in the weeks before his inauguration,” says Angie Jean-Marie of the abortion pill information network Plan C, citing strategies such as stockpiling pills, stockpiling from abroad and the organization of support groups.
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