Top Line
While Republican politicians have softened their calls for a nationwide abortion ban ahead of the November election, vice presidential candidate Sen. J.D. Vance (R-Ohio) and the authors of the controversial Project 2025 group are promoting another tactic former President Donald Trump could take to restrict access to abortion if elected: relying on a 19th century law known as the Comstock Law.
Republican vice presidential candidate Senator J.D. Vance (Representative of Ohio) spoke at a fundraising event on July 17. … [+]
Key Facts
The Comstock Act, first passed in 1873, prohibits the mailing of “any obscene, lewd, lascivious, filthy or lascivious article, thing, object, device, or substance,” including “any article or thing designed, adapted, or intended for the purpose of inducing an abortion” and “anything advertised or described as being so designed as to induce another to use or apply it to induce an abortion.”
Court decisions since the law’s passage have limited how obscenity charges can be prosecuted and narrowed the law’s scope — the Justice Department said in a December 2022 memo that it believed the law only applied to mailings of material that illegally encourages abortions — and the law has lain dormant for decades. Roe v. Wade Abortion has long been legal under federal law.
But the law has not been repealed, and anti-abortion advocates have attacked the Comstock Law in the wake of the Supreme Court’s decision to overturn anti-abortion rights. egg Set to take effect in 2022, Republican lawmakers wrote in court filings that the law would ban abortion pills from being delivered by mail, and activists have reportedly used it as legal justification for drafting plans to ban abortion if former President Donald Trump is re-elected.
Vance was among a group of Republican senators who wrote Attorney General Merrick Garland in January 2023 opposing a December 2022 Justice Department memorandum that would have allowed abortion pills to be delivered by mail under federal law, even in states where abortion procedures are banned, and urging him to enforce the Comstock Act to “stop all mail-order abortion services.”
Policy proposals outlined in Project 2025, a comprehensive policy plan by civilian right-wing groups for the next conservative president to reform the executive branch, also call for the Department of Justice to enforce the Comstock Act, which bans the delivery of abortion pills by mail.
While Project 2025 specifies that the law would be used to ban the mailing of abortion pills, legal experts point out that the law could also be applied more broadly to prohibit abortion pills and equipment from being mailed to hospitals and clinics, effectively banning abortions altogether.
Points to note
Democratic lawmakers introduced legislation in June to repeal the Comstock Act in response to growing pressure from the right to do so, but the bill has yet to make any headway and is unlikely to pass the Republican-controlled House and the divided Senate.
What we don’t know
How would Trump handle the issue of abortion if re-elected? The former president has taken a more open-ended approach to the issue than Vance, saying he would leave it up to states rather than pushing for a nationwide ban. He is also not required to follow Project 2025’s policy proposals, and Trump has tried to distance himself from the initiative, despite it being written by many former members of his administration. Abortion rights advocates largely believe that if elected, Trump would listen to allies and conservative activists and take some action against abortion, and the former president has a history of changing his views on abortion.
How will Trump use the Comstock Act?
Because the Comstock Act is already federal law, Trump could potentially use it as the basis for executive action to ban or restrict abortion on his first day in office, without needing congressional approval. A Trump-appointed attorney general could also issue guidance allowing him to go after abortion providers under the law. “All that would be needed is for the Department of Justice to make an executive decision to go after people who violate the Comstock Act,” Drexel University law professor David Cohen told BBC News. “There would be very little friction other than winning the election.”
Amazing facts
Although abortion opponents have jumped on the Comstock Act, they have been very reluctant to actually talk about the legislation ahead of the November election. Project 2025 materials don’t mention it by name, and Jonathan Mitchell, the lawyer who authored Texas’ controversial SB8 abortion ban, told The Times that abortion opponents are being purposely silent about the plan, given that abortion bans have become a liability for Republicans at the ballot box. [Trump] “I just don’t know about Comstock because I don’t want to give him the slip,” Mitchell told the Times. “I think pro-life groups should keep as quiet as possible until the election.”
Contra
Senator Vance said on “Meet the Press” in July, prior to his nomination for vice president, that he now supports legalizing the abortion drug mifepristone and that he respects the Supreme Court’s recent decision to reject challenges to the drug, saying the challengers lacked standing to sue. The senator, who has previously campaigned for a national abortion ban, would not comment on whether the pills should be allowed by mail under the Comstock Act, and his senate office has not yet responded to a request for comment.
tangent
While the Supreme Court’s recent decision on mifepristone did not mention the Comstock Act at all, right-wing Justices Clarence Thomas and Samuel Alito upheld the Act during oral argument in the case, describing it as a “broad and important provision” of federal law. This suggests that if the issue goes to the Supreme Court, or if the mifepristone debate returns to the Supreme Court, they would likely uphold the Comstock Act as a de facto ban on abortion, although it is unclear how the other justices feel about the issue.
Main Background
The Supreme Court Roe v. Wade In June 2022, President Trump ended the decades-old federal right to abortion, encouraging Republican-led states across the country to pass abortion bans. Abortion opponents have since turned to medication abortions, targeting the drug in both lawsuits and legislation. Abortion pills have become popular because they are easily accessible even when patients are in states that ban abortion. The focus on using the Comstock Act to ban abortion without congressional approval comes as Republican politicians are wary of trying to ban abortion on a federal scale ahead of the election, given the broad public support for keeping abortion legal. In addition to Trump’s comments that abortion is left to the discretion of each state, Republicans also drew attention ahead of the election for removing a national abortion ban, which they have called for for decades, from their official platform. While the change in wording appeared to soften the Republicans’ position, the platform also included language showing support for the “personhood of the unborn child.” This is a more restrictive legal theory that grants constitutional rights to the unborn child, and if adopted, it would require a nationwide ban on abortion.
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