What a potential Harris administration could actually do to protect abortion access

Vice President Kamala Harris has made abortion a central issue in her bid for the White House, pledging to expand and protect women’s ability to terminate a pregnancy if she’s elected to the nation’s highest office.

The vice president’s promises come as the country still reels from the Supreme Court’s 2022 decision to overturn Roe v. Wade, which guaranteed the constitutional right to abortion in the U.S. for the past half a century. Since that ruling, 13 states have completely banned abortions.

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

But what could Harris actually do to support abortion access in a post-Roe landscape? The question is central to a key dynamic underway in the presidential election: A partisan gender divide with few precedents in modern politics.

An October NBC News poll showed a gender gap of 30 percentage points between Harris and Republican Donald Trump, with male voters breaking for Trump by 16% and female voters for Harris by 14%.

This split between male and female voters is inextricably tied to the issue of abortion. According to the final New York Times election poll, abortion and the economy were tied among female likely voters as their top issue. Among all registered voters, men and women, only the economy ranked higher than abortion in its impact on voter choices.

If Harris were elected president, however, she would likely find it very difficult to restore 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.

Even so, she said, a Harris administration could increase the availability of medicine abortions and, crucially, it could fight Republican and activist attempts to further limit reproductive rights.

Harris has said she would sign a bill from Congress reestablishing abortion rights, but it’s unlikely such legislation would reach the Senate’s current 60-vote threshold. A bill in May 2022 that would effectively codify a right to abortion failed in the Senate, with a 49-51 vote. All Republicans opposed the measure.

Some Democratic lawmakers, including Harris, have voiced support for eliminating the filibuster in the Senate, which would allow bills to pass with a simple majority instead of the 60 votes currently required to end debate over legislation and advance it in the 100-member Senate.

“I’ve been very clear, I think we should eliminate the filibuster for Roe, and get us to the point where 51 votes would be what we need to actually put back in law the protections for reproductive freedom,” Harris said in September during an interview with Wisconsin Public Radio.

It’s uncertain Democrats will secure even a simply majority in the Senate this November, which would be necessary to undo the filibuster, said Mary Ziegler, a legal historian of the U.S. abortion debate. Though, that could change in the midterms, Ziegler said.

Even with enough votes, some Democrats may worry that lowering the Senate voting threshold could backfire on them and abortion access, she said.

“Democrats historically have been anxious about that because then they don’t have tools to defeat a new abortion ban if Republicans were to pass one,” Ziegler said.

Harris supports a repeal of the Hyde Amendment, a Congressional rider which limits federal spending on abortions to cases of rape, incest or life-threatening pregnancies. As a result of the restriction, women on Medicaid can be forced to pay out-of-pocket for an abortion, which can cost $600 or more in some cases. The provision impacts low-income women and women of color the most, experts say.

“Harris has been really vocal about supporting the repeal of the Hyde Amendment,” Ziegler said.

But once again, “she’d need Congress” to do so, Ziegler said. “If Democrats don’t control Congress, it’s going to be hard.”

Still, she added, “Having a president pushing for it would be significant.”

Harris could also pursue several paths to make medication abortions more available to people. In 2023, medication abortions accounted for 63% of abortions in the U.S., a rise from 53% in 2020, according to the Guttmacher Institute.

“There are likely many reasons for the increase, including the relatively recent availability of abortion medication through telehealth,” Salganicoff at KFF said, adding that Harris could look for more ways to make the pills accessible.

A Harris administration would not enforce The Comstock Act, a controversial federal law passed in 1873 that bans the mailing of obscene matter. In the conservative governing blueprint Project 2025, which former President Donald Trump has tried to disavow, the authors call for using the Victorian-era law as another kind of abortion ban, prohibiting using the mail to distribute abortion pills and other abortion-related materials.

“They’re arguing that if Planned Parenthood orders a scalpel for a medical supply company, that’s a federal crime,” Ziegler said.

Regardless of who wins the White House, an anti-abortion group could bring a case to the Supreme Court and convince the justices that The Comstock Act should be applied as a ban on mailing abortion materials, Ziegler said.

But enforcement of that ruling would be left to the U.S. Department of Justice, she said, and that would be another area where Harris could make a difference.

“A Harris administration wouldn’t be able to change what the Supreme Court is saying, but it could de-prioritize those prosecutions,” Ziegler said. “The DOJ always has limited resources, and prioritizes some prosecutions over others.”

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, experts said.

Her administration would also likely fight other legal challenges to further restrict abortions, such as state laws that ban emergency abortion care for patients when their health is in jeopardy. The Biden administration has argued that depriving people of this care violates EMTALA, or the Emergency Medical Treatment & Labor Act. That federal law requires hospitals to offer health-preserving treatment to those in need who come into their emergency rooms.

“Several states with abortion bans only have a life exception, not one for health,” Salganicoff said.

Trump takes credit for the Supreme Court’s decision to strike down Roe v. Wade, and embraces his role in picking the three conservative justices who voted against it. On the campaign trail, Trump said he would not sign a national abortion ban. However, some experts are skeptical of that promise, given the former president’s record. And federal policy would likely supersede any passed ballot measures, Ziegler said.

“Conserving access that already exists would be one of the less glamorous but important things,” Harris could do, Ziegler said.

Indeed, the vice president’s biggest impact on abortion access, should she win, would be to prevent the deterioration of rights that is likely under another Trump administration, Salganicoff said

“Your question is: ‘What could Harris do?'” she said. “The question is: What could an administration do that does not believe that abortion access should be protected? They can do so much more to dismantle access than today.”