What a Democratic Congress Can — and Can’t — Do About State Abortion Policy

Democrats’ sweep of Congress on Tuesday is unlikely to change abortion laws in states with bans anytime soon, even though the size of the victory was hard to miss. The party flipped at least seven Senate seats and, by Thursday, held 54 seats to the Republicans’ 44, with races in Mississippi and Alaska still too close to call. In the House, Democrats had won at least 240 seats, according to the Associated Press, with dozens still being counted.Voters also weighed in on abortion directly.In Missouri, about 55 percent rejected Amendment 3, a legislature-backed measure that would have repealed the abortion-rights amendment that voters passed in 2024 and brought back a near-total ban. Virginians wrote a right to reproductive freedom into their state constitution with roughly 62 percent of the vote, and Nevadans approved abortion protections for the second time, as state law requires.Idaho moved the other way. About 56 percent of voters turned down Proposition 1, which would have legalized abortion up to fetal viability. That leaves in place a law that bans nearly all abortions, with exceptions only to prevent the death of the mother or, in the first trimester, for rape or incest if reported to police.For a woman seeking an abortion in Boise or Baton Rouge, the change in Washington will do little in the near term. The new Congress isn’t sworn in until January. Any bill restoring a national right to abortion would have to get past the Senate’s 60-vote filibuster and then President Trump. Overriding a presidential veto takes a two-thirds vote in both chambers.For the next two years, the new majority’s leverage lies elsewhere.“Trump will likely use his veto to keep many Democratic bills from passing, and Democrats will fall well short of the two-thirds needed to override,” a professor at the University of Texas School of Law, Rachel Rebouché, tells The New York Sun. “But Congress can try to block Trump’s executive and judicial nominees, control federal spending, and vote down federal abortion restrictions and clinic defunding efforts.”In other words, the bills Democrats most want to pass are the ones least likely to become law. So, what can a party that holds Congress, but not the veto pen, actually get done?The Veto Pen and the 60-Vote WallHouse Democrats have promised to pass the Women’s Health Protection Act within their first 100 hours in power. The bill would create a federal statutory right to provide and receive abortion care and would wipe out many state restrictions, including bans on abortion before viability.Even a 54-seat majority is six votes short of breaking a filibuster and well short of the 67 needed to override a veto. Abortion opponents want the White House to say so out loud.“A pro-abortion congressional majority will attempt to thrust the nation back under the regime of Roe by passing the Women’s Health Protection Act,” the director of external affairs and media strategy at the anti-abortion legal advocacy group Americans United for Life, Gavin Oxley, tells the Sun.“President Trump must make a preemptive and public promise to veto this bill before it reaches his desk, turning the White House into a bulwark against abortion extremism.”Abortion-rights advocates counter that the stakes for women in ban states are financial as well as medical.“Research has shown that being denied an abortion can have devastating economic consequences and push families into poverty. The Center for Reproductive Rights has represented women in court who’ve lost their jobs and needed to take out loans after being forced to travel out of state for an abortion,” the senior policy and advocacy director at the Center for Reproductive Rights, a legal group that supports abortion rights, Daria Neal, tells the Sun.The Women’s Health Protection Act is only the opening move. Democrats’ quickest wins will likely come from blocking Republican measures, not passing their own.“With a pro-abortion Senate and House, Congress can prevent further attacks on abortion access that could threaten the ability of residents in ban states to access care via telehealth and interstate travel,” the principal federal policy adviser at the Guttmacher Institute, a research group that supports abortion rights, Anna Bernstein, tells the Sun.Last year’s Republican tax-and-spending law cut Planned Parenthood off from Medicaid for a year, and by the time that ban expired on July 4, the organization said nearly 30 of its roughly 600 clinics had closed.Anti-abortion groups had pressed Republicans to renew the cutoff through a third party-line budget bill. With Democrats running both chambers, that route is effectively closed.If Congress can’t rewrite the rules on abortion, who can?The Abortion Pill Review Comes DueThe federal decision that matters most for women in ban states could come from the Food and Drug Administration. The health secretary, Robert F. Kennedy Jr., ordered a safety review of mifepristone, a pill that blocks progesterone, the hormone a pregnancy needs to continue.Approved by the FDA in 2000 and taken with a second drug, misoprostol, it is part of the most common abortion method in America. Marty Makary was ousted as FDA commissioner in May amid complaints from anti-abortion advocates that the review was moving too slowly.In an October court filing, the FDA said it expects to finish its study by mid-December and report its findings “no later than March 2027,” after which it will decide whether to change the rules for prescribing the drug.Abortion-rights advocates question why the review is happening at all.“It’s unusual for the FDA to be conducting its own study of a medication with a 26-year track record of safety including extensive, ongoing monitoring since its approval,” Ms. Neal asserts.Some abortion opponents argue the White House doesn’t need to wait for the FDA at all.“President Trump could block mail-order abortion pills right now — regardless of any action from Congress — by enforcing a law that’s already on the books. America already has a ban against sending abortion pills in the mail. It passed in 1873,” the director of media and communication at Texas Right to Life, Kimberlyn Schwartz, tells the Sun.She is referring to the Comstock Act. The 19th-century anti-obscenity law bars mailing anything intended to produce an abortion but has not been enforced in decades.On Capitol Hill, committee chairmen will gain subpoena power and control of hearings, but little more.“To be honest, lawmakers have little leverage over the FDA’s mifepristone review,” an assistant professor of practice at the Catholic University of America, Michael New, tells the Sun.Others see a small but real opening for Democrats.“Congress can’t dictate the outcome, but Democrats can scrutinize the study,” Ms. Rebouché points out. That means hearings, document requests and public pressure.“Although Congress may not be able to influence the agency’s findings directly, they can hold the FDA accountable if their report contains politically motivated recommendations,” Ms. Bernstein says.Emergency Rooms, Statehouses and CourtroomsCongress has even less say over what happens in emergency rooms. Last June, federal health officials scrapped guidance issued in 2022 that told hospitals they had to provide abortions when needed to stabilize a patient, even in states with bans. Bringing it back would take action from the White House, not lawmakers.Spending power gives Democrats some leverage.“The battles are at all levels of government, given potential administrative actions and Congressional powers to halt the use of federal funds to bar access to abortion,” a professor of health law and policy at George Washington University, Sara Rosenbaum, tells the Sun.Ms. Rosenbaum notes that Democrats could use spending bills to block any administration move to narrow emergency-care protections for pregnancy loss or to limit access to abortion drugs, whether through FDA policy or enforcement of the Comstock Act.Abortion opponents read Proposition 1’s roughly 12-point defeat in Idaho — a state President Trump won by about 37 points in 2024 — as proof that organizing pays off in red states.“We can’t look at this year’s abortion ballot measure results in a vacuum,” Mr. Oxley observes. “Since Dobbs, there have been multiple victories in Florida, South Dakota, Nebraska, and now Idaho, where grassroots education and mobilization have been the defining difference.”His point is that abortion-rights measures have not carried every conservative state since Roe fell. A 2024 initiative in Florida won a majority but fell short of the 60 percent the state requires for a constitutional amendment, and voters in South Dakota and Nebraska rejected rights measures outright.Supporters of abortion rights draw a very different lesson from Idaho.The result shows that “there always, unfortunately, will be states that simply are unmoved by the grievous harms caused by abortion bans that limit legal access to life-endangering emergencies only,” Ms. Rosenbaum says. “This is the harm caused by Dobbs.”Researchers who track abortion policy say the loss shows how hard it is to win in states run by abortion opponents. “This loss in Idaho indicates that significant barriers remain in states with restrictive abortion policies, where anti-abortion policymakers dominate, and well-funded campaigns drive opposition to protective measures,” a principal state policy adviser at the Guttmacher Institute, Kimya Forouzan, tells the Sun.Ms. Rebouché, however, cautions against reading too much into any single result. Idaho’s measure was written as an ordinary statute, a law passed by voters rather than an amendment to the state constitution, so the Legislature could have repealed it even if it had passed.Missouri’s initiative, meanwhile, “was a dual measure that also covered transgender procedures for minors, so the vote wasn’t purely about abortion,” she explains. That means Missouri voters could have rejected Amendment 3 over either half of the package.The sharpest tests of what Tuesday means may come in Texas and South Carolina, two ban states that just sent Democrats to the Senate.In Texas, James Talarico defeated Attorney General Ken Paxton, and Gina Hinojosa ousted Governor Greg Abbott. Democrats also took the state House for the first time since 2002 although Republicans kept the state Senate, and Ms. Hinojosa cannot repeal the state’s near-total ban on her own. The incoming attorney general, Nathan Johnson, has said he will stop suing out-of-state doctors who mail pills into Texas.In South Carolina, a pediatrician who supports abortion rights, Annie Andrews, defeated Senator Darline Graham. Yet voters also elected the Republican attorney general, Alan Wilson, as governor, so the state’s ban after about six weeks of pregnancy seems likely to remain in force.Mr. Talarico’s and Ms. Andrews’s Senate votes won’t change the law back home, and abortion opponents are betting that state-level gains will outlast the swing in Washington.Lower levels of government “are typically less susceptible to party changes compared to Washington, which means that victories at the state level can last longer,” Ms. Schwartz says.The next round of fights is likely to be settled not at the ballot box but in the courts. Texas won a roughly $113,000 judgment in February 2025 against a New Paltz, New York, doctor who prescribed abortion pills to a Texas woman by telemedicine. Yet, New York officials have refused to enforce it under the state’s shield law.“With Trump’s veto standing in the way, Congress can’t legislate either way, so policy moves elsewhere,” Ms. Rebouché explains. “Washington still matters through the FDA, nominations and the budget, but the outcomes are likelier to come from judges, regulators and state legislatures.”Next up are a new Congress in January, the FDA’s mifepristone findings by March, and court fights over mailed pills that could reach the Supreme Court. Some abortion opponents say a lack of support for their cause from Republicans contributed to Tuesday’s losses.“Republicans have a hard lesson to learn ahead of 2028. The GOP must stop running from the pro-life fight and start giving voters a reason to fight for them,” the communications director at Susan B. Anthony Pro-Life America, Kelsey Pritchard, tells the Sun.Others are already planning around the new Congress. “Americans United for Life is particularly looking to the FDA, DOJ and CDC to deliver some of the most consequential victories since Dobbs, even in the face of Congress changing hands,” Mr. Oxley says.

What a Democratic Congress Can — and Can’t — Do About State Abortion Policy

What a Democratic Congress Can — and Can’t — Do About State Abortion Policy

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