The serious implications of a Republican Senate

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Vice President Kamala Harris speaks at a campaign rally on November 4, 2024, in Allentown, Pennsylvania. | Michael Santiago/Getty Images Four years after Donald Trump tried to steal the 2020 election and left office in disgrace, the American people returned him to power in the 2024 election. Major news outlets called most of the major swing states — North Carolina, Georgia, Pennsylvania, and Wisconsin — for Trump late Tuesday night and early Wednesday morning, giving him an Electoral College majority. Vice President Kamala Harris no longer has a path to victory. The trend was broader than the swing states; there was a shift toward Trump across the nation, as he significantly improved on his performance in the 2020 election.  Indeed, it looks quite plausible that Trump could end up winning the national popular vote for the first time ever, though that will take some time to determine for sure, as it depends on the exact margin in slow-counting states like California. Trump’s win will come with a new Republican Senate majority, as Democratic incumbents lost in Ohio and Montana. But as of Wednesday morning it is not yet clear which party will control the House of Representatives, and it could take some time to find out.  What is clear is that Trump won. How did this happen?The blame game among Democrats will come fast and furious. But though the Harris campaign’s strategy is sure to be second-guessed, the extent and nationwide nature of the shift in Trump’s favor suggest she had an uphill battle all around — because of the widespread unpopularity of President Joe Biden and public disapproval of his record in office. Harris inherited a tough situation from Biden – and ultimately could not overcome it When Harris unexpectedly joined the presidential race in July after Biden stepped aside, she faced three formidable obstacles. The first was a global trend: In the years since the pandemic, incumbent parties have been struggling in wealthy democracies across the world. The reasons for this are debated, though post-reopening inflation is likely a big one. But to win, Harris would have to defy this trend. The second was Biden’s unpopularity. The president was historically unpopular long before his disastrous debate with Trump, and poll after poll showed voters irate with his handling of the economy and immigration. Foreign policy, particularly the Israel-Gaza war that divided Democrats’ coalition, was a problem too. And since Harris had served in his administration as vice president, she had to figure out what to do about that. Typically, such dynamics would seem to point to a “change” election where the incumbent party is booted. In such elections, the opposition can often put the blame for the current state of affairs on the incumbents, make vague promises that they’ll do things differently, and ride to victory. Yet there was nothing typical about Harris’s opponent: Donald Trump. The fact that Trump had recently served as president in his own controversial term, with his own controversial record, seemed to present Harris with an opening. Perhaps she could brand herself the change candidate who would deliver a fresh, new approach, breaking from the failed politics of the past.  That brings us to the third obstacle: Harris’s own record. While running for president in 2019, Harris embraced a set of very progressive policy positions that Democrats now view as politically toxic, including banning fracking and decriminalizing unauthorized border crossing. So she had a choice to make: Should she stand by her old positions and promise bold progressive change, or should she tack to the center? In the end, Harris took a kind of middle path. She downplayed, disavowed, or simply avoided mention of many of the progressive policies she’d supported back in 2019 — but she didn’t deliberately pick fights with the left in search of centrist cred, like Bill Clinton did in his 1992 presidential campaign. Harris wanted to keep the Democratic coalition happy, pleasing as many people as she could, rather than taking sides in any factional fights. In addressing Biden’s record, too, Harris tried to strike a balance. She decided not to criticize Biden, throw him under the bus, or break with him — or the Biden-Harris administration’s policies — in any significant way. When pressed about voter anger over inflation and unauthorized immigration, she did not acknowledge error. Rather, she tried to argue that the economy was doing well now, and blamed Trump for not supporting a bipartisan immigration bill. And she did not shift on Israel-Gaza. Harris’s hope was that she’d done enough to present herself as a new face, and that the fundamental unfitness of Donald Trump — and his unpopular record on issues like abortion and his attempt to steal the 2020 election — would ultimately prove to be decisive to voters disgruntled with both parties.  That hope was in vain.  Ultimately, much of the public was more resentful of inflation under Biden than they were about Trump’s attempted election theft. And so voters turned back to the candidate they kicked out of office just four years ago.

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As a candidate, Donald Trump waffled on his positions on abortion. | Joe Raedle/Getty Images Kamala Harris elevated abortion rights to the heart of her campaign, but Donald Trump is the winner of the 2024 presidential election. So what does this mean for reproductive rights on the federal level?  The short answer is that there are many ways Trump could ban abortion, and the most likely way isn’t through Congress, even with a Republican-controlled Senate. (It is not yet clear whether Republicans will take control of the House.) The long answer is that as a candidate, Trump waffled on his positions on abortion. Despite frequently bragging about appointing the Supreme Court justices who overturned Roe v. Wade, Trump started to soften his tune in the months leading up to the election, especially as his vice presidential pick JD Vance began generating negative media attention for his anti-abortion views. As Election Day drew nearer, Trump began insisting he’d be “great for women and their reproductive rights” but he also repeatedly dodged questions about whether he’d veto any national abortion bans that land on his desk. At the presidential debate in September, Trump refused to answer that question multiple times, insisting it wouldn’t be necessary since abortion rights are now a matter of state discretion. By October, though, he finally came out to say he would veto a federal abortion ban, posting on social media that he would “not support a federal abortion ban, under any circumstances.”  Unfortunately, that’s not as reassuring as it sounds. Federal abortion bans in 2025 are not likely to take the form of bills landing on the president’s desk. Any bill out of Congress would still require some bipartisan agreement unless lawmakers overturned the filibuster. Republican senators have already promised to preserve the filibuster in a Trump administration, and the anti-abortion movement, for its part, has not been counting on the GOP to push bills with a simple majority. Given the widespread support for abortion rights across the US, passing a federal ban would also be politically dangerous for congressional lawmakers from swing or moderate districts, making the near-term prospect of such efforts highly unlikely. “Quite frankly, unless something really unusual happens in this election, neither side is going to have the votes in Congress to pass a national law,” Carol Tobias, president of the National Right to Life Committee, told the Associated Press in early October. “So that wasn’t really at the top of our list anyway.” They do have a list, though. Sending abortion pills by mail is more at risk One agenda item at the top of the anti-abortion movement’s list is enforcement of the Comstock Act, an 1873 federal law that could prohibit anything associated with abortion from being sent in the mail. Such a ban could mean not only restricting abortion medication — the most common method used to end a pregnancy in the US — but also any medical equipment used during abortion procedures, like speculums, suction catheters, and dilators. “We don’t need a federal abortion ban when we have Comstock on the books,” Jonathan Mitchell, the legal architect behind a 2021 law in Texas that effectively banned abortion in that state, told the New York Times earlier this year. Mitchell urged anti-abortion groups to “keep their mouths shut as much as possible until the election” regarding this strategy. The Comstock Act was rendered moot by Roe in the 1970s but never formally repealed, and now, with Roe gone, many conservatives see it as an ideal vehicle for restricting abortion nationwide, precisely because it wouldn’t require the passage of a new federal law.  For months Trump dodged journalists’ questions regarding the Comstock Act, but by August, he finally said he would not use the old statute to ban abortion drugs in the mail. However, many people in his close orbit, including the vice president-elect, are on record urging the opposite, and it was a core item of Project 2025, the notorious policy blueprint drafted by the Heritage Foundation and many people close to Trump’s campaign. Trump could also ban abortion by appointing anti-abortion leaders to control key federal agencies that could use executive power to restrict reproductive rights, including the Department of Health and Human Services (HHS), Department of Justice (DOJ), and the Food and Drug Administration (FDA). Kristan Hawkins, president of Students for Life of America, says her top priority is to push Trump to appoint anti-abortion leaders to executive agencies so they can integrate anti-abortion policies into existing federal programs. “I think reversing the Biden-Harris abortion agenda will be vibrant, it’ll be active,” she told the New York Times over the summer.  Hawkins says her group’s second priority will be to push HHS to defund Planned Parenthood. While federal funds are already barred from financing abortion, Planned Parenthood receives federal money from the Office of Population Affairs for family planning and preventive health services, including contraception, cancer screenings, and STI testing. (In 2019, Trump issued a rule to limit this money, which was subsequently reversed under the Biden administration.) Appointing anti-abortion leaders to agencies like the FDA and DOJ could affect anti-abortion litigation. In October, three Republican attorneys general (Raúl Labrador in Idaho, Kris Kobach in Kansas, and Andrew Bailey in Missouri) filed a lawsuit to force the FDA to heavily restrict access to mifepristone, one of two drugs used to induce abortions. (Though medication abortion has a lower risk of complication than many other widely available drugs, it has faced stricter regulation in the US largely for political reasons. Since 2016, the FDA has gradually reduced these restrictions, including allowing for telemedicine prescriptions.) While the Supreme Court threw out a similar FDA complaint over the summer, concluding the plaintiffs lacked standing to bring the lawsuit, the Republican attorneys general believe they’ll be better able to prevail in this new attempt. Notably, they also argue in their complaint that the FDA has violated the Comstock Act by permitting abortion bills to be sent by mail. While a 2022 Biden DOJ opinion ruled that the Comstock Act doesn’t criminalize mailing abortion drugs if the sender lacks intent for unlawful use, a Trump DOJ could interpret the law differently. A Trump FDA also may not fight changing rules on abortion pills at all. The judiciary awaits The last major way Trump could promote a federal abortion ban is through federal court appointments. In his first presidential term, for example, Trump appointed one of the most anti-abortion judges in the country — Matthew Kacsmaryk — to a federal court in Texas. Kacsmaryk greenlighted the now-overturned legal opinion that the FDA should revoke its approval of mifepristone. Trump’s campaign has maintained close ties to Leonard Leo, the co-chair of the right-wing Federalist Society, which helped Trump vet all his anti-abortion judicial appointments in his first four years in office. (Leo also helps finance groups to bring cases to the Supreme Court and orchestrates strategy for the conservative legal movement broadly.)  The anti-abortion movement has been explicit that its long-term goal is “fetal personhood” — endowing fetuses, embryos, and fertilized eggs with full human rights and legal protections. This once-fringe idea has been gaining traction over the last few years. (Kacsmaryk also embraced the idea of “unborn humans” and fetal personhood.) At least 19 states have declared that fetuses at some stage of pregnancy are people, according to a report from Pregnancy Justice, a group that advocates for pregnant people’s rights. In February, the Alabama Supreme Court issued a decision that claimed frozen embryos count as “children” under state law. In April, the Florida Supreme Court signaled openness to hearing a future challenge on fetal personhood when its chief justice asked whether Florida’s constitution should include “the unborn” in its equal protection statute.  And in the 2022 majority opinion for Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe, Supreme Court Justice Samuel Alito seemed to lay the groundwork for a fetal personhood challenge by repeatedly emphasizing the significance of “fetal life.” Over the spring, Alito also seemed to endorse the idea that a fetus needed the same “stabilizing treatment” in a hospital as a pregnant patient. Codifying a fetal personhood standard could lead not only to the outright ban of abortion but also most forms of birth control and in vitro fertilization (IVF). While Trump and Republican lawmakers insist they are determined to protect reproductive rights, including IVF and contraception, their anti-abortion judicial picks could do just the opposite. 

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