Trump could gut abortion access in California if elected. Here's how

Table of Contents

Good morning and welcome to Los Angeles Times Politics, our new guide to an election year fraught with controversy, misinformation and, yes, exhaustion.

With 216 days left until we find out who will be our next Grandpa President, there are so many questions that need answering. For example:

Why are the pages of the new Trump Bible sticky?
Can MAGA Republicans take us back to the 1800s on abortion, like they did with guns?
And, most important, does anyone really need another election newsletter?

I’ll take those in reverse order. Yes, Californians, you need this newsletter. My colleague David Lauter and I will be bringing you the view from the West — not just what’s happening with state and national politics but why it matters here, in the Golden State.

Because we are different.

But no matter how hard we try to ignore everything between the Sierra Nevada and New York City, we are also all Americans. Some of us just live in a better place — geographically and mentally.

So let’s get started.

Could abortion in California really be at risk?

Again, yes — in two significant ways.

Last week, Julia Spiegel, Gov. Gavin Newsom’s senior advisor for reproductive rights, sat in the front row at the U.S. Supreme Court to hear the justices debate whether a common pill, mifepristone, should be restricted for use in abortions.

Spiegel told me what struck her most was the hushed decorum inside the court, contrasted with the loud protests outside.

But as two of the most conservative justices — Samuel A. Alito Jr. and Clarence Thomas — began a line of questioning around an obscure 1873 anti-vice law known as the Comstock Act, Spiegel was reminded that “there was a quiet threat sitting right there in front of you.”

The case being argued, FDA vs. Alliance for Hippocratic Medicine, was largely a loser for anti-abortion folks and “dead on arrival,” UC Davis law professor Mary R. Ziegler told me, because it lacked “standing” — basically, proof that real people could be harmed by the existing law.

But, Spiegel warned, we may have “dodged a bullet” this time, “only to have a bomb dropped on us” later.

That blast could be the enforcement of the Comstock Act under a Trump presidency.

Anthony Comstock was a fun Gilded Age fellow who managed to pass a federal law that banned the mailing of “obscene, lewd or lascivious” materials, as David wrote last week.

If Trump is elected, he could order his Department of Justice to begin enforcing the Comstock Act, Ziegler warns. Like, right away. With no courts or legislation — it’s already law. That could mean arresting doctors who are mailing abortion pills — along with arresting those who receive the pills.

Since Comstock is a federal law, it supersedes state law, meaning even Californians would be at risk.

“So if you are a pregnant person in California, and you order mifeprisone, they could go after you too, because there are no exceptions that make clear that you can’t punish women and other abortion seekers,” Ziegler said. “The state couldn’t protect you.”

Under that scenario, reproductive rights advocates would likely try to argue to the Supreme Court to limit the scope of Comstock — and would clearly have standing, since actual people would be legally injured by its enforcement.

That would give Alito and Thomas a solid case in which to push for a de facto national abortion ban, since under Comstock, it’s not just pills that can’t be mailed but any object that could be used in an abortion — even latex gloves, if they are headed to a clinic that performs the procedure. So surgical abortions, along with medication abortions, could be hamstrung.

Beyond that, Ziegler warns, Comstock could cover contraception (I’m assuming Viagra will be safe, just saying). Some abortion foes have the position that contraception that interferes with a fertilized egg is abortion. So it’s not much of a stretch to see mail-order birth control or morning-after pills shut down if Comstock is enforced.

Ziegler said she is frustrated that the very real danger of Comstock enforcement under Trump isn’t better understood.

“I’m like, people, there is this actual thing that could happen that you are not talking about,” she said.

Bomb Part Deux

If Comstock doesn’t keep you up at night, Democrats are hoping EMTALA will — or at least get you mad enough to vote.

That’s the Emergency Medical Treatment & Labor Act, enacted in 1986 and the subject of another abortion case that will go before the Supreme Court in April, Idaho vs. United States.

EMTALA basically requires that any hospital receiving Medicare funds examine and stabilize anyone who walks in the door with an emergency — including if that condition requires an abortion.

You don’t have to be about to die to qualify for EMTALA abortion care, just messed up enough that you risk deteriorating if they send you elsewhere without medical intervention first.

That puts the federal provisions of EMTALA in direct opposition to some states’ laws prohibiting almost all abortions unless the mother’s life is at immediate risk.

In this case, Idaho — which has some of the strictest abortion laws in the country — is telling the feds to stuff it, arguing that its not-until-mom-is-dying law stands. The Supreme Court has indicated, by taking up the case so quickly, that it agrees.

“I don’t think there is a scenario where Idaho doesn’t win that case,” Ziegler said, adding that it will likely be “a big, splashy loss for Biden.”

“My sense to why Biden went so hard on EMTALA is because there was no losing for him politically on this,” she said.

That’s because the EMTALA ruling will likely come down this summer, like the ruling in the mifepristone case. Where the abortion pill case may not raise public ire if the judges rule as expected, EMTALA could fire up voters the way the overturning of Roe did — at least, that is what Democrats hope.

Because the stakes are real.

If Idaho prevails, it could embolden other states to further restrict when abortions are available, even in dire cases, because the Biden administration will have lost leverage to stop them.

Doctors will fear being criminally charged for providing emergency abortions more than states will be scared of losing money for passing no-exemption laws.

But that’s not all!

In a worst-case scenario, striking down EMTALA protections could provide a pathway to allow states to weasel out of emergency care in other MAGA-unpopular instances, such as intervention for a gender-affirming care emergency or life-saving HIV treatment. It could also end up requiring that the life of the “unborn child” be weighed alongside the life of the pregnant person when determining treatment.

I’ll cover more about EMTALA in coming weeks, but I’ll leave you with this parting thought from Spiegel, Newsom’s point person on reproductive rights:

“We need to be really blunt with people about what is at stake in these next couple of months.”

Stay Golden,
Anita Chabria