One of the top priorities outlined in Project 2025 is its misleading mandate for “protecting life, conscience, and bodily integrity.”2 Contrary to what this framing suggests, Project 2025 proposes to exclude abortion from health care services, in direct opposition to the position of leading health organizations.3 Project 2025’s agenda will severely limit access to abortion care in several ways. By implementing these proposals, the federal government will restrict the availability of abortion care and add to the challenges Black people already face in accessing equitable, quality, and comprehensive health care. When Black pregnant people wish to terminate a pregnancy but nevertheless remain pregnant because they cannot access abortion care, they are at greater risk for adverse health outcomes.4 Restricting access to abortion care by banning or limiting access to mifepristone, barring hospitals from providing emergency abortion care, and increasing abortion surveillance will exacerbate existing inequities.5
Project 2025 will limit abortion access for Black communities by:
Project 2025 will end access to medication abortions, which account for the majority of all abortions in the United States.6 More than twenty years ago, the Food and Drug Administration (FDA) approved the drug mifepristone as safe and effective for the medical termination of pregnancy as part of a two-drug protocol.7 In 2016 and 2021, the FDA acted reasonably to make modifications to mifepristone’s label and the Risk Evaluation and Mitigation Strategy (REMS), a formal plan to ensure that the benefits of certain drugs outweigh their risks, based on an exhaustive review of available scientific evidence.8 In 2016, the FDA approved several changes to mifepristone’s conditions of use and modified the REMS, including allowing non-physician health care providers who are licensed to prescribe medications to become certified prescribers of mifepristone.9 In 2021, after a thorough scientific review, the FDA announced that it would further modify the mifepristone REMS to eliminate in-person dispensing requirements for the medication because it determined there was enough scientific evidence that it would remain safe and effective.10 This gave people the option of accessing mifepristone through the mail.11
This past term, the U.S. Supreme Court decided a case brought by a group of anti-abortion doctors and organizations who challenged the FDA’s actions regarding mifepristone.12 The Supreme Court found that these anti-abortion groups lacked jurisdictional standing to challenge the FDA’s 2016 and 2021 actions with respect to mifepristone because they were not injured and could not prove that the FDA’s actions caused any injury. Although the Court disposed of this particular case based on jurisdictional standing, it did not address the merits of the anti-abortion doctors and organizations’ claims,13 thus leaving open the possibility that access to mifepristone could be restricted or eliminated in the future.
Project 2025 will achieve what the anti-abortion doctors and organizations tried to accomplish through the courts, by using the FDA itself to significantly limit access to mifepristone. The report asserts, “Abortion pills pose the single greatest threat to unborn children in a post-Roe world.”14 It will have the FDA reverse its approval of mifepristone in order to restrict access to medication abortions.15 In the interim, it suggests that the FDA immediately restore the pre-2016 REMS, which will make it harder to obtain mifepristone16 by, among other things, reinstating medically unnecessary in-person dispensing requirements.17 Further, Project 2025 will ban the delivery of abortion medications via mail based on the Comstock Act, an 1873 anti-vice law that forbids the mailing of “obscene” materials or drugs and instruments related to abortion.18
The Emergency Medical Treatment and Labor Act (EMTALA) is a federal statute that requires Medicare-funded hospitals to provide “necessary stabilizing treatment” for any patient with an “emergency medical condition,” regardless of the patient’s ability to pay.19 Congress amended the statute in 1989 to clarify and extend protections for pregnant people. EMTALA thus ensures meaningful access to emergency health care for everyone, including for pregnant patients who may require pregnancy termination as part of their necessary stabilizing treatment.
The U.S. Supreme Court considered a case this past term about whether an Idaho state law could limit the scope of EMTALA for pregnant people, but the Court ultimately declined to rule on the merits and instead sent the case back down to the lower courts because it determined that it had intervened in the case too early.20 Project 2025, however, is clear in its interpretation of the law, stating, “EMTALA requires no abortions, preempts no pro-life state laws, and explicitly requires stabilization of the unborn child.”21 Under this interpretation of EMTALA, states such as Idaho will be permitted to ban abortion care even when it is necessary during a medical emergency to protect the pregnant patient’s health.
Threatening patient privacy and security, Project 2025 will create “abortion surveillance” systems to collect “[a]ccurate and reliable statistical data about abortion [and] abortion survivors.”22 To address the purported problem of certain states becoming “sanctuaries for abortion tourism,” Project 2025 will have the U.S. Department of Health and Human Services (HHS) “use every available tool, including the cutting of funds, to ensure that every state reports exactly how many abortions take place within its borders, at what gestational age of the child, for what reason, the mother’s state of residence, and by what method.”23 The report further suggests that the Centers for Disease Control and Prevention also surveil and collect data on abortions as a condition of federal Medicaid payments for family planning services.24
The heightened abortion surveillance and potential enforcement of the Comstock Act proposed in Project 2025 will increase pregnant people’s risk of contact with the criminal legal system, which has already been an issue in parts of the United States and is of particular concern for Black pregnant people. A report discussing the arrests and forced interventions on pregnant women from 1973 to 2005 found that there were more than 400 cases of pregnant women subjected to arrest, detention, and forced interventions.25 The overwhelming majority of these women were economically disadvantaged, with Black pregnant women disproportionately represented, and the largest percentage of cases came from the South.26 Eight of the 400 cases were related to allegations of women self-managing their abortions, while other cases involved state action against women who experienced a pregnancy loss or whose conduct allegedly harmed a fetus.27 The report further found that, despite privacy protections, some medical and public health professionals provided patient information to law enforcement and other state actors, and they were more likely to disclose information about patients of color.28
Another recent report determined that between 2000 and 2020, sixty-one people, including seven minors, were criminally investigated or arrested for allegedly ending their own pregnancy or assisting the termination of another’s pregnancy.29 This analysis examined how people have been surveilled for their conduct during pregnancy since the Supreme Court’s decision in Roe v. Wade. Criminalization and the threat of criminalization, including for health care providers and others, have continued since the Supreme Court issued its Dobbs decision. For example, in 2023, Alabama’s attorney general threatened to prosecute people who help Alabamians cross state lines to get abortion care, including health care workers, abortion funds, and other support people.30 The chilling effects of such threats and criminalization impede the ability of pregnant people to seek care and the ability of others to support them.31
LDF’s brief outlines the harms a ban on the sale of mifepristone would have on people who have relied on its availability for two decades. The impact would be acutely felt by Black and low-income people, who rely on the right to safe, legal abortion at higher rates than other groups, and face profound inequities in accessing essential health care as a result of a long history of systemic racism and discrimination.
Litigation
The amicus brief highlights that substantially limiting access to late-term abortions, as the Mississippi law and other anticipated laws throughout the country would do, would inflict grievous harm on Black and low-income people in particular, who have relied on the right to an abortion—and the right to access abortion later in pregnancy—at higher rates than other groups.
Restricting access to abortion care will harm Black pregnant people’s health and limit their economic opportunities. Black womeni are three times more likely to die from an issue related to pregnancy than white women due to multiple factors, including structural racism and implicit bias.32 A recent study by the National Bureau of Economic Research found that the highest-income Black women had equally high maternal mortality rates as low-income white women.33 The study “demonstrates that disparities are not explained by income, age, marital status, or country of birth” and that structural racism plays a major role.34 Further restrictions on abortion access, including restrictions on medication abortions and access to abortion care in emergency situations, will likely exacerbate these problems if Black people who are especially vulnerable to pregnancy-related health conditions are unable to terminate a pregnancy. This is already a grave risk for the fifty-seven percent of all Black women of reproductive age (more than 6.7 million Black women) who live in the twenty-six states that have banned or are likely to ban abortions, according to the National Partnership for Women and Families.35
Abortion access is further complicated by income and insurance limitations, which disproportionately impact Black people. Low-income people who live in states with bans or extreme restrictions on abortions often lack the funds to travel to a state where they may obtain abortion care.36 Whether a pregnant person has health insurance, and what type of insurance they have, can also determine their access to abortion care. Black women of reproductive age face the largest disparity in health insurance coverage.37 Thirteen percent of Black women ages fifteen to forty-nine have no health insurance, compared with eight percent of white women.38 Nearly 1.8 million Black women covered by Medicaid live in states that have banned or are likely to ban abortion.39 Because they are more likely to be insured under Medicaid, Black women have for decades had to pay out of pocket to cover their abortion care or forego abortion care entirely due to the Hyde Amendment, which prohibits the use of federal funds for abortion except in cases of rape, incest, or if the pregnant person’s life is in danger.40 Even Black pregnant people who have private insurance may be unable to use their benefits to access abortion care if their state prevents private insurers from covering such care.41 Inadequate insurance coverage means that Black pregnant people are less likely to access quality health care, including reproductive care, which leads to worse health outcomes overall.42
Additionally, abortion bans have made high-quality maternal health care less accessible for Black pregnant people. Broadly speaking, bans like the Idaho law in the EMTALA case that was before the Supreme Court this past term have led to obstetricians and gynecologists leaving their home states, forcing the closure of labor and delivery wards and limiting access to maternal health care services.43 Abortion bans and restrictions also impact patients’ ability to seek health care due to a pregnancy loss. Although there is limited data on racial and ethnic disparities in miscarriage, the rates of fetal mortality are higher among Black women and other women of color.44 Because the medications and procedures used to manage miscarriages and stillbirths are often identical to those used in abortions, health care providers in states with abortion bans or restrictions may delay care or not be able to provide care for people experiencing pregnancy loss due to potential exposure to criminal or civil penalties.45
Project 2025 will also limit the already scant economic opportunities for Black pregnant people. The benefits of better access to reproductive health care, including abortion care, are significant. For example, Black women are likely to see a seven-percent increase in employment opportunities if they live in places where abortion access is protected.46 Additionally, pre-Dobbs research demonstrated that the legalization of abortion led to increased rates of high school graduation, college entrance, and participation in the workforce for Black women.47 Black people are more likely than white people to live in poverty for three consecutive generations,48 and because many people who seek abortion care are already parents, limiting access to abortion care can substantially increase financial burdens on Black families and contribute to the racial wealth gap.49 The Turnaway Study, a pre-Dobbs research study analyzing the experiences of women after they were denied an abortion, found that women who were denied a wanted abortion faced economic hardship and insecurity, such as not having enough money for necessities like food and housing, for years.50
Black pregnant people who live in an “abortion desert,”51 a place where people must travel at least 100 miles to reach an abortion facility, may encounter additional economic barriers if they travel out of state for abortion care. Black women have historically faced and continue to face wage disparities52 and are disproportionately represented in lower-paying jobs where they are less likely to have benefits such as paid sick days,53 which would allow them to travel and recover after an abortion. When seeking abortion care while living in a state that outlaws it, pregnant people will at minimum have to shoulder the unexpected costs of an abortion procedure along with travel and lodging to the medical facility, and they must also cover any loss from missing days at work. Childcare costs pose an additional financial burden for those who are already parents and must pay for childcare while they access abortion care. Although proposed legislation such as the Build Back Better Act54 provides a framework for affordable, high-quality child care, the United States lacks adequate federal child care infrastructure, resulting in child care deserts.55 Research suggests that during the COVID-19 pandemic, Black residents were likely to have experienced worsening child care deserts.56 Being able to make decisions about whether to have children is a matter of economic justice for Black pregnant people.
In these ways, Project 2025’s plan to restrict access to abortion care by banning or limiting access to mifepristone, barring hospitals from providing emergency abortion care, and increasing abortion surveillance will exacerbate existing inequities and pose dire risks for Black pregnant people’s health, contact with the criminal legal system, and economic opportunities.
iLDF’s use of “woman” or “women” refers to available statistical data and is not meant to exclude or minimize the impact of these policies on transgender men and nonbinary people who may become pregnant and need to seek abortion services.
All people in the United States deserve equal access to comprehensive, high-quality health care, especially Black communities that are more likely to live in medically underserved areas. Comprehensive health care must encompass sexual and reproductive health care services, including, but not limited to, access to contraception, abortion care, pregnancy care from the prenatal to postpartum period, and gender-affirming care. Although providing the entire spectrum of comprehensive sexual and reproductive health care services is crucial, Project 2025 directly threatens access to safe abortion care for Black people. Access to abortion care is critical for Black people to make decisions that shape their lives and impact their health, family life, and economic opportunity.
