Today marks two years since Roe v. Wade was overturned, wiping out federal protections for abortion rights. This decision was a direct result of Donald Trump’s actions. In 2016, during his presidential campaign, he vowed to appoint Supreme Court justices who would overturn Roe. Over the course of his presidency, he did just that – appointing the three Supreme Court justices who later voted to reverse decades of protections for abortion rights.

Trump’s devastating legacy is clear. Today, anti-abortion politicians in 17 states have banned abortion, leaving millions of people without access to care. If Trump resumes office, this will only be the beginning. Trump’s advisors are already plotting to twist a law from 1873 to effectively ban abortion in all 50 states, even where abortion is protected under state law. Trump won’t stop at abortion rights – he will seek to limit contraception access, too. At the ACLU we’re gearing up to fight in courts and at every level of government to block the Trump administration’s relentless assault on reproductive rights. Learn more in our breakdown:

The Facts: In an attempt to deceive voters – who overwhelmingly oppose restricting abortion access – Trump has waffled on whether he’d encourage Congress to pass a new law to ban abortion nationwide. He doesn’t need Congress, however, to attempt to wreak havoc on our access to abortion. According to Trump’s anti-abortion strategists, a new Trump administration can bypass Congress and use a 150-year-old law called the Comstock Act to effectively ban abortion nationwide. The Comstock Act is an 1873 anti-obscenity statute that regulates the use of the mail and common carriers concerning sending and receiving anything that is “indecent, filthy, or vile” or “intended for producing abortion.” Even though this law has long been understood not to apply to the lawful abortion, Trump’s advisors plan to misuse this antiquated law to effectively ban abortion nationwide.

In addition to weaponizing the Comstock Act to imperil abortion access, a second Trump administration would respond to calls from his allies to withdraw the Food and Drug Administration’s (FDA) approval of mifepristone, a safe and effective medication used in most abortions and miscarriage care in the U.S. Trump has also admitted that he has a plan to restrict access to contraception.

Why It Matters: Donald Trump made it possible for anti-abortion extremists to deny people the right to make decisions about their bodies and their lives. Since the justices he appointed overturned Roe, 17 states have banned abortion. Today, millions of people of reproductive age live hundreds of miles from the closest abortion provider, forcing more than 171,000 persons to travel outside of their home state to secure access to abortion care in 2023 alone. Many others are not able to get the care they need at all. In spite of the fact that Trump’s anti-abortion policies run counter to the will of the public, we know that, should Trump secure a second term, his administration will not hesitate to further decimate reproductive rights and try to ban abortion nationwide.

Trump on Abortion

The ACLU examines how a second Trump administration would further imperil reproductive rights nationwide – and our roadmap to fight back.

Source: American Civil Liberties Union

How We Got Here: When he was president, Trump not only stacked the Supreme Court with justices who would later overturn Roe, but he decimated access to birth control and family planning services for people living on low incomes. Additionally, Trump’s allies in Congress have repeatedly attempted to dismantle federal programs, like the Affordable Care Act, that support reproductive health care access, or to block laws that would codify the right to contraception or protect access to IVF.

Recently, Trump attempted to downplay his plans to further ban abortion and other critical reproductive health care to avoid alienating voters. In fact, Jonathan Mitchell, Trump’s lawyer before the Supreme Court, admitted to The New York Times that he hopes Trump does not mention his intentions to weaponize the Comstock Act to ban abortion nationwide until after the election. Yet these attempts to pull the wool over the public’s eyes cannot conceal how Trump’s unguarded statements, his allies’ public playbook and admissions, and, most importantly, his prior actions have already made his anti-abortion and anti-reproductive health stance clear.

Our Roadmap: The ACLU is fighting for our right to abortion and other reproductive health care in court, in Congress, in the states, and at the polls. If Trump is re-elected, we’ll challenge his administration’s dangerous attacks on reproductive freedom, including any attempts to weaponize the Comstock Act to ban abortion nationwide or to take medication abortion off the shelves.

Similarly, in Congress and in the courts, we’ll work to protect access to birth control and to fight any attempt to make it more difficult for people to access contraception and family planning services. Also, the ACLU and its affiliates are actively engaged in 2024 ballot initiative efforts to enshrine abortion rights in state constitutions.

What Our Experts Say: “Overturning Roe was not the last stop for Trump and his anti-abortion allies. They are quietly plotting to ban abortion nationwide using a law from 1873 and will not hesitate to try to do so if Trump returns to the White House. We will continue our work to ensure that Americans know the truth, and to thwart Trump’s attempts to pull the wool over the public’s eyes. If he returns to office, we will be there every step of the way to expose his plans, galvanize efforts to stop him, and to fight him in court whenever possible.” – Jennifer Dalven, director of the ACLU Reproductive Freedom Project

What You Can Do Today: Politicians are relentless in their attacks on reproductive freedom, but a majority of this country believes that people must have the power to make personal decisions during pregnancy. Join us in this fight to expand and restore our rights by urging legislators to pass federal legislation that safeguards our reproductive freedom – including abortion, birth control, and IVF care.

This piece was first published in Slate on 6/21/24.

The U.S. Supreme Court today broke from its recent embrace of gun rights, leaving in place a federal criminal law that makes it a felony for anyone subject to a civil domestic violence restraining order to possess a gun.

As an advocate for survivors of domestic violence, today’s outcome comes as a relief. Indeed, it is the result my organization, the ACLU, asked the court to reach.

Even so, liberals shouldn’t take the decision as cause for great celebration. That’s because, while there is no doubt in my mind that preventing perpetrators of domestic violence from obtaining guns will help prevent further violence, this case was not about whether the respondent should have been able to buy a gun. The question was whether he should be sent to prison for having one.

As a feminist, I care about both gender-based violence and the violence of imprisonment. Gun laws, in particular, have helped to fuel mass incarceration and contributed to disproportionate imprisonment of Black people and other people of color.

Funneling the problem of gender-based violence into the criminal legal system may not sound so bad if the alternative is no response at all. That’s the problem the court faced in United States v. Rahimi. But that’s a false choice, constructed via decades of reliance on criminal legal responses to violence in America’s legislatures, executive branches, and state and federal courts.

The Supreme Court itself has played a part in creating this dilemma. In 2000, for example, the court heard a case brought by a survivor against a college classmate whom she alleged had raped her repeatedly. She was able to sue her attacker because of a novel provision of the Violence Against Women Act that empowered survivors to seek a civil remedy from those who harmed them.

The court, however, made quick work of VAWA’s civil provision, finding that Congress lacked the power to create any such remedy at all. But it left in place criminal provisions carrying lengthy terms of imprisonment. Stripped of its civil provision, the original VAWA became known not as an innovative law but a regressive one—and part of the notorious 1994 crime bill.

A second decision in 2005 doubled down. After her estranged husband violated a restraining order and kidnapped her three kids from her yard, Jessica Lenahan (then Gonzales) contacted police multiple times over 10 hours asking them to help retrieve her children. Police refused, saying there was nothing they could do—until the father arrived at the police station and opened fire. Only then did the police act, killing Lenahan’s husband and finding the children already dead in his truck.

Lenahan sued the police, but she didn’t fare any better in the courts. Looking to history and tradition, the Supreme Court couldn’t find any right to have her restraining order enforced. What it did find was a “well established tradition of police discretion.” This history, the court noted without irony, meant that the state was free to both disregard survivors like Lenahan who asked police for help and bulldoze over survivors who asked the state not to interfere in cases of domestic assault.

Viewed in the context of the court’s history with domestic violence, survivors should think twice before embracing today’s decision as a victory for women. It can be understood not as a departure from the VAWA and Lenahan decisions, but a continuation of them: In all three cases, the only winner was the carceral system.

Our nation’s prioritization of the criminal legal system to the exclusion of all else is particularly troubling given that many people who experience domestic violence opt not to pursue criminal charges, knowing that they may encounter disbelief and hostility from law enforcement or find themselves subject to abuse charges when they report being victimized. Others worry that the criminal legal system will magnify the harms they are experiencing by jeopardizing their family’s economic security or inflicting further violence through incarceration. As feminist legal scholar Aya Gruber has written, hyperfocus on the criminal legal system has “diverted feminist energy and capital away from addressing the underlying conditions that make women, especially marginalized women, vulnerable to personal and state violence.”

But we can advocate for alternate pathways to meaningful safety.

There is not strong evidence to support the deterrent effect of after-the-fact criminal sanctions for gun possession, yet such punishments are where Congress has focused. The civil licensing regime that prohibits selling guns to people in Rahimi’s position, for example, exists only as a piggyback measure off of the underlying criminal law.

As the ACLU pointed out in a friend-of-the-court brief, that add-on has prevented more than 77,000 gun sales since 1998. Congress would be wise to decouple gun sales from criminal law and to focus more on prevention—particularly given the likelihood that the court may soon void other criminal gun laws, with staggering ripple effects on rules governing gun sales.

Other efforts may include imagining new civil remedies for harms once considered exclusively criminal. The civil process, unlike the criminal one, can offer survivors agency: the decision whether and when to seek relief and the option to discontinue the case if that best serves their needs. To ensure equitable access to courts, attorney’s fees and other incentives to represent survivors can be built in.

Reimagining safety is possible, but only if we reject the idea that prison is the best—or the only—way to address domestic violence. Survivors deserve better than what the carceral legal system has left us. We all do.