What actions a potential Harris administration could take to safeguard abortion rights

• If elected president, Vice President Kamala Harris intends to prioritize the expansion and safeguarding of women's right to choose to end a pregnancy.
• It would be challenging for a Harris administration to reinstate the right to abortion across the country.
• The availability of medicine abortions could increase and counter Republican efforts to restrict women's choices for terminating pregnancies.

If elected as Vice President, Kamala Harris has promised to prioritize the expansion and safeguarding of women's right to choose to end a pregnancy.

The Supreme Court's 2022 decision to overturn Roe v. Wade has resulted in 13 states completely banning abortions, and now the vice president is making promises to address the issue.

Harris stated during her closing remarks on Tuesday evening at Ellipse lawn in Washington that one does not have to abandon their faith or deeply held beliefs to agree that the government should not be telling her what to do with her body. The crowd of more than 60,000 supporters cheered loudly in response.

What can Harris do to support abortion access in a post-Roe era, which is a crucial aspect of the ongoing gender divide in the presidential election?

A gender gap of 30 percentage points existed between Harris and Trump in an October NBC News poll, with male voters leaning towards Trump by 16% and female voters supporting Harris by 14%.

The divide between male and female voters is closely linked to the topic of abortion. In the final New York Times poll, women's top issue was abortion and the economy, while for men, only the economy had a greater impact on their voting decisions.

If Harris were elected president, she would likely face challenges in restoring the right to an abortion nationwide, said Alina Salganicoff, a senior vice president and the director of the Women's Health Policy Program at KFF.

A Harris administration could increase the availability of medicine abortions and fight Republican and activist attempts to further limit reproductive rights, even if she said so.

Restoring Roe-era protections is unlikely

Experts say that restoring a right to abortion across the U.S. would be challenging, if not impossible, and would require a significant change in the composition of the Supreme Court or an act of Congress.

Salganicoff stated that both are difficult to envision in the near future.

Harris has stated that she would sign a bill from Congress restoring abortion rights, but it's unlikely such legislation would pass the Senate's current 60-vote requirement. In May 2022, a bill that would have codified a right to abortion failed in the Senate with a 49-51 vote. All Republicans opposed the measure.

Some Democratic senators, including Harris, have expressed support for abolishing the filibuster in the Senate, which would enable bills to pass with a simple majority instead of the 60 votes currently needed to end debate on legislation and move it forward in the 100-member Senate.

In September, during an interview with Wisconsin Public Radio, Harris stated that she believes the filibuster for Roe should be eliminated and that 51 votes should be sufficient to reinstate protections for reproductive freedom.

Though it's uncertain whether Democrats will secure a simple majority in the Senate this November, which is necessary to undo the filibuster, legal historian Mary Ziegler said that this could change in the midterms.

Some Democrats may worry that lowering the Senate voting threshold could harm their efforts to protect abortion access, even with enough votes.

Historically, Democrats have been anxious about not having tools to defeat a new abortion ban if Republicans were to pass one, according to Ziegler.

Other ways of protecting abortion in the U.S.

The Hyde Amendment, a Congressional rider that restricts federal spending on abortions, is supported by Harris. This restriction forces women on Medicaid to pay out-of-pocket for an abortion, which can cost $600 or more in some cases. Experts say that this provision disproportionately affects low-income women and women of color.

Ziegler stated that Harris has been actively advocating for the abolition of the Hyde Amendment.

If Democrats don't control Congress, it will be difficult for her to achieve her goals, Ziegler said.

Additionally, she stated that having a president advocating for it would be significant.

Harris could explore different options to increase access to medication abortions in the US. In 2023, medication abortions accounted for 63% of abortions in the US, up from 53% in 2020, according to the Guttmacher Institute.

Salganicoff at KFF stated that there are likely many reasons for the increase in abortion access, including the recent availability of medication through telehealth. Harris could explore more ways to make the pills more accessible.

The Comstock Act, a federal law passed in 1873 that bans the mailing of obscene matter, would not be enforced by a Harris administration. In the conservative governing blueprint Project 2025, the authors propose using the Victorian-era law as an abortion ban, prohibiting the use of the mail to distribute abortion pills and other abortion-related materials.

According to Ziegler, if Planned Parenthood orders a scalpel from a medical supply company, it could be considered a federal crime.

An anti-abortion group could bring a case to the Supreme Court and convince the justices to apply the Comstock Act as a ban on mailing abortion materials, regardless of who wins the White House, Ziegler said.

Harris could make a difference in the enforcement of the ruling and another area where she could make a difference is in the U.S. Department of Justice.

"Although a Harris administration wouldn't be able to alter the Supreme Court's decisions, it could adjust its priorities in prosecutions," Ziegler stated. "The DOJ has limited resources and prioritizes certain prosecutions over others."

Experts said that Harris could also oppose efforts by Republicans and anti-abortion groups to invalidate the Food and Drug Administration's approval of mifepristone, which is used to terminate pregnancies.

The Biden administration would likely challenge state laws that restrict emergency abortion care for patients in danger, arguing that such measures violate EMTALA, which mandates hospitals to provide life-saving treatment to those in need who arrive at their emergency rooms.

Salganicoff stated that several states with abortion bans do not have a health exception, but only a life exception.

Abortion ballot measures at stake

This election, 10 states have ballot measures to enhance abortion access. In Arizona, Florida, Missouri, and South Dakota, the amendments would reverse current abortion laws, safeguarding abortion rights until fetal viability, with certain exceptions after that time.

If Trump wins, the measures that passed have a higher chance of surviving than if Harris wins, Ziegler stated.

"If Trump is president, it would be less clear whether those protections would remain in place under a Harris administration."

Trump claims responsibility for the Supreme Court's decision to overturn Roe v. Wade and boasts about his role in appointing the three conservative justices who voted against it. Despite promising not to sign a national abortion ban on the campaign trail, Trump's past actions have raised doubts about his commitment to this promise. According to Ziegler, federal policy would likely take precedence over any state-level ballot measures.

One of the less glamorous but important things that Harris could do, according to Ziegler, is conserve existing access.

Salganicoff stated that the vice president's most significant contribution to abortion access, if she were elected, would be to prevent the erosion of rights that are likely under another Trump administration.

"What could an administration do that does not believe in protecting abortion access?" she asked. "They can do so much more to dismantle access than today."