Anti-Abortion Republicans Want Comstock Laws to be their Secret Weapon in 2024

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The 2024 presidential election is officially underway, yet the race’s gravest stake has received alarmingly little attention: Prominent conservatives have a plan for the next anti-choice president to ban abortion nationwide without an act of Congress—and it may well succeed.

Their secret weapon is the long-dormant Comstock Act, a 19th century law still on the books, which states that to ship, carry, or receive “any drug, medicine, article or thing designed, adapted, or intended for producing abortion” would be a federal crime. If your eyes are blinking in disbelief, we felt similarly when we first read the statute — though organizers and writers have been trying to draw attention to the threat for the past several months. Given the riotous state of American abortion politics, how can nationwide restrictions potentially already exist in federal law, yet receive so little mainstream attention?

In part, as one prominent anti-abortion lawyer has explained, because some in the movement deliberately kept silent about their Comstock agenda until after the fall of Roe v. Wade. With Roe overturned, however, organizations, including one headed by former Trump aide Stephen Miller, intend to leverage the law to impose a nationwide ban on medication abortion — and perhaps go further — should the White House flip in 2024.

For the moment, the Comstock Act remains largely neutered. In 2022, the Department of Justice indicated that, in its view, the law was effectively unenforceable. The federal government enjoys broad prosecutorial discretion – nobody but the Department of Justice gets to decide when to bring federal charges – so anti-abortion activists have been unable to realize their Comstock ambitions under this administration. But prosecutorial postures can change.

In an 887-page blueprint for a potential Republican administration, the vice president at America First Legal, the nonprofit Miller runs, urges a new administration to withdraw the Biden legal interpretation, and instead enforce the Comstock Act’s “criminal prohibitions,” against “providers and distributors of abortion pills.” Implementing such a policy would fall to the attorney general, a post for which Miller is apparently on the shortlist should former president Donald Trump win in November 2024.

If upheld in court, the enforcement strategy would outlaw medication abortion – the most common form of abortion – overnight. Comstock convictions carry prison sentences of up to ten years. Even if manufacturers of abortion pills could somehow operate without using the postal service, express companies, or common carriers – each expressly proscribed by Comstock – a Trump-appointed federal judge recently suggested that a 1996 amendment makes it “illegal to use the internet to ship or receive abortifacients.” What doctor or pharmacy could continue to dispense medication abortion under even the mere threat of such legal jeopardy? The grim answer is none.

Bleaker still, medication abortion may prove only the tip of the Comstock iceberg. Because the law also encompasses “any … article or thing designed, adapted, or intended for producing abortion,” some hope to extend the Comstock argument to medical equipment used in surgical abortions — which would shutter every abortion provider across the country.

Understand there would be no refuge from successful Comstock prosecutions in blue states. As federal law, it would supersede all state-level protections. And because the statute is already on the books, an administration could act without ever involving Congress.

This chilling vision is no mere fringe fantasy, but rather the calculated objective of a sophisticated and pedigreed operation. The Comstock proposal appears in a blueprint published by “Project 2025,” the sprawling transition-planning initiative led by the Heritage Foundation, the nation’s foremost conservative think tank. More than 50 right-wing organizations have signed onto the project, including groups described as a “machine-in-waiting” for a second Trump term. According to Project 2025’s website, similar efforts have proved influential: the first Trump administration embraced “nearly two-thirds of Heritage’s proposals” from a 2016 agenda within just its first year in office.

Others, including state and local officials, are chomping at the Comstock bit too. For years, Jonathan Mitchell, the legal mind behind Texas’s SB-8 strategy, appeared to be quietly orchestrating the law’s revival. As Mitchell told The Nation last year, he “really was hoping nobody would say anything about the Comstock laws until Dobbs came out,” lest it disturb the prevailing fiction that all the Supreme Court sought in Roe’s demise was to return the abortion issue to the states.

To be clear, the Biden administration and abortion access advocates have developed compelling legal defenses to future Comstock prosecutions. But those of us who believe in reproductive freedom should not delude ourselves: the merits of such arguments are ultimately far less consequential than the composition of the Supreme Court, where any Comstock litigation will inevitably land. Can we expect the same justices responsible for Dobbs to save us from the brewing Comstock assault? The tea leaves suggest not. Already two federal judges, Matthew Kacsmaryk and James Ho, each a Trump-appointed darling of the ascendant Federalist Society, have written approvingly of anti-abortionists’ Comstock theories.

Rather than rehash familiar debates from the 2020 election for an exhausted electorate, political commentators would do better to focus their analysis on the Comstock Act’s explosive potential in a post-Roe America.

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Originally Appeared on Teen Vogue

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