Though President-elect Donald Trump has waffled on how his administration might handle abortion policy, anti-abortion activists are already exerting a pressure campaign for the incoming Trump administration to take a hardline approach and undo many of the policies set in place by the Biden administration.

Still, with two months left before Biden leaves office, there are some areas where legal scholars and attorneys suggest the outgoing administration could still take action, even if the impact may be narrow or short-lived.

“There were a bunch of things that the Biden administration did do,” said Jennifer Dalven, head of the ACLU’s Reproductive Freedom Project. “The question is what will be undone, and how quickly and can we fight it.”

The outgoing administration has leveraged its authority to secure abortion access in some cases and pressed state governments to do the same. But it can do little to maintain those protections beyond Trump’s January 20 inauguration. Many policies — for instance, supporting military members who need to travel for abortion — could be quickly rescinded. 

Abortion opponents have called for, at a minimum, a reprisal of Trump’s first term, in which he appointed anti-abortion judges, barred Planned Parenthood from participating in the federal family planning known as Title X, and directed his Department of Justice to challenge guidance from the Food and Drug Administration that expanded availability of medication abortion drug mifepristone. They have also pushed for the undoing of Biden policies that supported abortion access.

“Anything that the federal or state governments can do to support both abortion providers and funds — be it financially or otherwise — to get through the transition to an administration that will be hostile to abortion and reproductive rights in general, they absolutely should,” said Molly Duane, an attorney at the Center for Reproductive Rights, a legal advocacy group.

One way, many legal scholars said, could be by enforcing existing policies. In one of its most high-profile efforts to protect abortion, the Department of Health and Human Services has argued that the Emergency Medical Treatment and Labor Act — known as EMTALA — requires that most hospitals provide abortions if they constitute the appropriate stabilizing care in an emergency. Hospitals in violation of EMTALA can face financial penalties. 

Abortion opponents have challenged that argument, with multiple cases still making their way through the courts. But even over the past two years, the federal government has levied only a few penalties against hospitals, despite receiving numerous complaints of alleged violations. The government announced a streamlined complaint process this past May to address cases more quickly.

The Center for Reproductive Rights is waiting for federal responses regarding multiple complaints. Two were filed in August by women in Texas who could not get timely care for their ectopic pregnancies — which are life-threatening, nonviable and only treatable with abortion — until the pregnancies ruptured, putting them at risk of death. Another, filed on October 30, is on behalf of a woman whose water broke prematurely and who did not receive hospital care until she was septic. The typical timeline to address an EMTALA complaint is a few months.

“The big thing we are wanting for our clients is some accountability for the harms that they’ve suffered,” Duane said. All three, she said, are straightforward cases.

A spokesperson for the Department of Health and Human Services (HHS) declined to comment about how the department might approach outstanding EMTALA complaints, which are handled by its subsidiary, the Centers for Medicare & Medicaid Services (CMS). 

But time is running out. Legal experts and public policy observers have said they anticipate the new administration walking back the Biden administration’s interpretation of EMTALA and arguing that it does not protect abortion even in medical emergencies. Dr. Mehmet Oz, Trump’s pick to head CMS, has said he does not support abortion at any point in pregnancy. Robert F. Kennedy, Jr., Trump’s selection for HHS secretary, has been less consistent on his abortion views, but has been open to meeting with anti-abortion groups and lawmakers. 

“No pro-life law prevents emergency intervention and abortions necessary to save the life of a mother,” said Marjorie Dannenfelser, head of SBA Pro-Life America, an influential anti-abortion group.

Legal scholars also pointed to other potential policy levers the Biden administration could pull, if not to secure abortion rights then to at least expand access to the procedure in some states and strengthen access to reproductive rights more broadly. 

In August 2022, HHS and CMS jointly instructed states to consider developing Medicaid pilots that might use funds from the insurance program — which is jointly funded by federal and state governments, but regulated on individual state levels — to help cover expenses people incur when traveling to these states for abortions. (Legally, federal funds cannot be used to pay for abortion itself, though state funds sometimes can be.) Abortion-related travel can be cost-prohibitive for people who cannot legally access the procedure in their home states.

“Those are sticky. It’s not like they persist forever, but it might even give a year or multiple years before the Trump administration could roll them back,” said Elizabeth Sepper, a professor at the University of Texas School of Law who specializes in health law. “That would be really helpful to get some of those costs defrayed.”

But that proposal has yielded little interest from states, even as some are scrambling to get approval for other new Medicaid proposals. Carly Sfregola, a spokesperson for the National Association of Medicaid Directors, said the organization was unaware of any state applications to use Medicaid funds to cover abortion-related travel. HHS also did not answer questions about whether the government might remind states it is looking for proposals.

Even faced with a hostile administration, some reproductive rights policies will not disappear immediately. 

Abortion opponents have called for the reversal of a rule that took effect this summer to ensure that the Health Insurance Portability and Accountability Act, which safeguards patient medical records, applies to records of patients’ abortions. But the process of undoing federal rulemaking is complex and will take at least months.

That could also matter for another federal rule proposed in October, which would strengthen insurance coverage of contraceptives, including over-the-counter birth control, as mandated by the Affordable Care Act. By law, the proposed rule must be open to public comment before it can be finalized and implemented. The comment period ends December 27 — leaving just under a month to finalize it before the presidential transition.