Trump's looming abortion dilemma

Dec 10, 2024

POLITICO'S West Wing Playbook: Transition of Power

By Alice Miranda Ollstein, Eli Stokols, Lauren Egan, Lisa Kashinsky and Ben Johansen

Presented by Better Medicare Alliance

Welcome to POLITICO’s West Wing Playbook, your guide to the preparations, personnel decisions and policy deliberations of Donald Trump’s transition. POLITICO Pro subscribers receive a version of this newsletter first.

A West Coast federal appeals court on Tuesday revisited the issue of whether emergency rooms must provide abortions to patients in medical distress. But DONALD TRUMP’s administration may upend the case — and several other reproductive health battles — early next year.

The full bench for the 9th Circuit Court of Appeals heard arguments from JOE BIDEN’s Justice Department that Idaho’s enforcement of its near-total abortion ban during medical emergencies violates RONALD REAGAN-era patient protections — a case the Supreme Court weighed and punted to lower court judges earlier this year, saying it took up the issue prematurely.

Trump’s inauguration will likely come before the 9th Circuit issues a ruling — and anti-abortion activists are confident his administration will either drop the challenge, settle with Idaho, or change its interpretation of federal emergency room regulations in a way that renders the lawsuit moot.

This case will likely be just the first of many legal abortion wars of his administration as courts around the country grapple with a wave of litigation following the Supreme Court’s Dobbs decision upending Roe v. Wade. And while Trump campaigned on a promise to reject a federal abortion ban, his administration’s more under-the-radar litigation and rulemaking could roll back abortion access in all states, even those deemed friendly to abortion rights.

“President-elect Trump said he wants to leave abortion as a state's issue,” said CAROLYN McDONNELL, the litigation counsel for the anti-abortion group Americans United for Life. “So it's unlikely that he'll just continue litigating the case — that's not really an option.”

The Trump transition did not respond to questions about its plans for the lawsuit.

The health care chapter of the Heritage Foundation’s Project 2025 urges the incoming president to rescind the Biden administration’s 2022 guidance that hospitals must render stabilizing care in an emergency, including abortions when necessary, regardless of state bans. The document also calls on Trump to end all of the Biden administration’s investigations into hospitals that have turned pregnant patients away.

But Trump’s return to the White House isn’t necessarily game over for this case — or any of the other abortion fights he will inherit on Jan. 20, which range from questions about abortion pill availability to funding for family planning clinics.

If the DOJ bows out of cases Biden's legal team brought against states they believe are violating federal protections — or refuses to defend Biden’s pro-abortion rights policies from outside lawsuits — then doctors, patients or even Democratic state attorneys general are expected to try to intervene to try to keep the challenges alive.

“There's a broad and diverse community of advocates and people who rely on and believe it's important that reproductive health care be as protected as possible, that are considering their legal options,” said SKYE PERRYMAN, the president of the progressive legal group Democracy Forward, which is representing doctors and abortion pill manufacturers in other ongoing cases. “Many in Idaho who have been harmed by the state violation of federal law would have legal recourse and remedies should the Department of Justice fail to itself continue to defend federal law.”

And if courts deny those parties’ attempts to intervene, notes the ACLU’s ALEXA KOLBI-MOLINAS, any individual who believes their rights were violated could file new challenges.

A patient “who is harmed could bring a lawsuit. A doctor who is retaliated against could bring a lawsuit. And a hospital who receives a patient dumped from another hospital has recourse too. So if this case goes away, that doesn’t stop individuals,” she said.

In the meantime, a cloud of uncertainty is hanging over people like JESSICA EVANS-WALL, an emergency medicine doctor in Boise, Idaho, who told West Wing Playbook that fear and confusion about how federal patient protections and her state’s abortion ban interact has harmed not only pregnant patients, but everyone coming to her ER.

“I’ve had to be on the phone with a lawyer at 2 a.m. on a Saturday over an ectopic pregnancy, which delayed care not just for that patient but for everyone coming in for a stroke, heart attack or other serious emergency,” she said. “Medically, it was so clear what we needed to do. But legally, it wasn’t.”

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MEA CULPA: In yesterday’s edition, we inaccurately described the ambassador to Colombia’s responsibilities in relationship to Venezuela. Trump’s ambassador to Colombia may also be charged with handling the relationship with Venezuela if the administration doesn’t appoint a separate ambassador to Caracas.

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POTUS PUZZLER

What made Christmas Eve in 1929 at the White House notable?

(Answer at bottom.)

Pro Exclusive

The reporting in this section is exclusively available to POLITICO Pro subscribers.

Trade vet Sam Scales shepherding Greer’s nomination for USTR, via our GAVIN BADE

Union: Attacks on telework ‘demean’ feds, via our KEVIN BOGARDUS

House GOP’s top tax writer battles with party leaders on Trump’s border-tax strategy, via our BENJAMIN GUGGENHEIM and JORDAIN CARNEY

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Heads up, we're all transition all the time over on our live blog: Inside Congress Live: Transition of Power. Bookmark politico.com/transition to keep up with us.

THE BUREAUCRATS

FIRST IN WEST WING PLAYBOOK: VIVEK RAMASWAMY — the billionaire who will co-chair Trump’s new advisory body, the Department of Government Efficiency — was a top individual donor to the Council for National Policy, a conservative, highly secretive group entangled with Project 2025, our DANIEL LIPPMAN and Ben report. In 2023, while vying for the Republican nomination for president, Ramaswamy contributed $100,000 to the organization, according to a previously unreported tax return obtained by Accountable.us. He also spoke last year at a CNP conference. Several CNP directors have direct ties to Project 2025 — the Heritage-backed blueprint for a conservative agenda — and some current board members hold influential positions in organizations that also served on Project 2025’s advisory board. (The listing of the donation may have been a mistake since nonprofits typically don't have to list their donors.)

Two CNP board members were directly involved in the production of the blueprint’s foundational text, the Mandate for Leadership: CNP director EDWIN MEESE III, who was credited as a contributor on the project, and director WILLIAM WALTON, who co-authored the chapter on the U.S. Treasury. CNP, a dark-money group which had some members who tried to help Trump overturn the 2020 election results, is known to conduct its meetings in posh hotels — where members are strictly forbidden from discussing the contents of the meeting with the public.

This newly disclosed contribution only adds to Ramaswamy’s Project 2025 ties. In the new administration, he and ELON MUSK will work directly with RUSS VOUGHT — a key architect of the blueprint and Trump's pick to once again lead the Office of Management and Budget.

A spokesperson for Ramaswamy declined to comment while the Council for National Policy didn’t respond to a request for comment.

A NEW FTC LOOK? Trump is considering replacing Federal Trade Commission Chair LINA KHAN with ANDREW FERGUSON, a well-known Republican lawyer currently serving on the commission, our BETSY WOODRUFF SWAN and JOSH HENDEL report. Trump has not made a final decision and is set to meet with Ferguson this afternoon. If selected, Ferguson won’t need Senate confirmation since he is already on the commission.

Ferguson previously had stints as chief counsel for outgoing Senate Minority Leader MITCH McCONNELL (R-Ky.) and Sen. LINDSEY GRAHAM (R-S.C.), and was the former Virginia solicitor general. Other contenders may still be in the mix. Sen. MIKE LEE (R-Utah), the top Republican on the Senate Judiciary’s antitrust committee, told POLITICO he recommended his former staffer MARK MEADOR for an FTC role “one way or another.”

BROUGHT BACK TO LIFE: The Trump transition team entered this week of meetings at the Capitol with a newfound momentum, emboldened by a swarm of grassroots support and a pressure campaign that has revived PETE HEGSETH’s hopes for Defense secretary and given them added confidence on some of the president-elect’s other controversial picks, our MERIDITH McGRAW and NATALIE ALLISON report.

In recent days, Trump allies have adopted a new approach: Make life extremely uncomfortable for anyone who dares to oppose him. The swarm of MAGA attacks on Sen. JONI ERNST (R-Iowa) is a warning of what’s in store for others who express skepticism. People in Trump’s orbit believe that if Hegseth’s nomination was “sacrificed” to Ernst, it would become a “feeding frenzy” with other controversial picks like TULSI GABBARD or ROBERT F. KENNEDY JR. on the menu.

HEADED TO THE HILL: Speaking of RFK, the nominee for Health and Human Services secretary will have a packed schedule next week, with nearly two dozen Capitol Hill meetings scheduled, our CHELSEA CIRRUZZO scoops. One of the Hill stops includes a meeting with the incoming leader of the Senate HELP committee, which could hold a confirmation hearing.

Kennedy will meet with the Senate HELP Committee’s Republican staff on Thursday and will also meet with committee ranking member BILL CASSIDY (R-La.) sometime next week. Cassidy will chair the panel next year.

FROM LAST NIGHT: Trump on Monday night announced more picks to join his new administration. Attorney MARK PAOLETTA will rejoin the White House as general counsel in the Office of Management and Budget. Paoletta, a prominent Washington lawyer, served as legal counsel for former Vice President MIKE PENCE and later to OMB in the first Trump administration. In the upcoming administration, he will work directly with the proposed Department of Government Efficiency, led by Ramaswamy and Musk.

Trump also said Monday that he will nominate HARMEET K. DHILLON, the former vice chair of the California Republican Party, to be the assistant attorney general for civil rights in the Department of Justice.

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Agenda Setting

MESSY, MESSY: The Justice Department during Trump’s first term failed to comply with its own procedures when it sought journalists’ phone and email records in leak investigations, according to a DOJ watchdog report released Tuesday. Our JOSH GERSTEIN and KYLE CHENEY report that the department also never conducted any high-level review as it swept up the records of 43 congressional staffers and two Democratic House members.

DOJ Inspector General MICHAEL HOROWITZ said he found no evidence that federal prosecutors got express approval from then-Attorney General BILL BARR or told federal courts that the subpoenas were for records of lawmakers and their aides, despite the potential for the probes to intrude on legitimate oversight efforts from Congress.

NO WIGGLE ROOM: Trump’s choice to lead border security efforts promised a hard line on enforcement in a speech Monday to Chicago Republicans, with apparently little room for leniency even for U.S.-born children of undocumented immigrants, who are U.S. citizens, our SHIA KAPOS reports. TOM HOMAN, who has been tapped as Trump’s “border czar” in the new administration, said the children of non-citizens would be a part of the wave of deportations. “When you have a child, that’s on you. I’m not looking to separate families at all. That’s not my goal,” Homan said. “My goal is to enforce the law. But if you put yourself in that position, it may happen.”

Homan explicitly addressed Illinois Democrats, including Gov. JB PRITZKER and Chicago Mayor BRANDON JOHNSON, saying he would welcome Democratic leaders to “come to the table,” on enforcement. “Help us protect you,” he said. “Please. But if you don’t, get the hell out of the way.”

A message from Better Medicare Alliance:

What We're Reading

Trump wants to end birthright citizenship. Can that really happen? (POLITICO’s Kierra Frazier)

Senate Democrats’ next foreign policy leader charts new course for party (Semafor’s Burgess Everett)

Elon Musk warns Republicans against standing in Trump’s way — or his (AP’s Thomas Beaumont, Juliet Linderman and Martha Mendoza)

Donald Trump Jr. is seen flaunting his romance with socialite Bettina Anderson in Palm Beach...with no sign of fiancée Kimberly Guilfoyle (Daily Mail’s Greg Woodfield)

A message from Better Medicare Alliance:

After decades of work, many seniors find health care costs to be the biggest barrier to independence in retirement.

Medicare Advantage is helping more than 34 million Americans live healthier on their terms — with lower health care costs and better health outcomes.

Every senior deserves quality health care they can afford. Learn more at SupportMedicareAdvantage.com

POTUS PUZZLER ANSWER

On Christmas Eve 1929, the White House experienced its most significant fire since the British torched the Executive Mansion 115 years earlier, according to the White House Historical Association. Around 8 p.m., White House messenger CHARLIE WILLIAMSON smelled smoke coming from the West Wing executive offices and alerted White House police officer RICHARD TRICE and Secret Service agent RUSSELL WOOD. The two ran to the offices where smoke was coming from and found an estimated 200,000 government pamphlets — stored in an attic since the days of President THEODORE ROOSEVELT — "going up like brushwood."

After the D.C. fire department arrived, the fire was put out by 10:30 p.m. The executive offices were heavily damaged and the White House press room was ruined. Reporters lost personal effects and files — along with a new poinsettia plant from HERBERT and LOU HOOVER.

A CALL OUT! Do you think you have a harder trivia question? Send us your best one about the presidents, with a citation or sourcing, and we may feature it!

Edited by Jennifer Haberkorn and Zach Montellaro.

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