Topline
Republican politicians have tempered calls for a national abortion ban ahead of the November election—but vice presidential candidate Sen. JD Vance, R-Ohio, and authors of the controversial Project 2025 are among those promoting another tactic former President Donald Trump could take to curb access to the procedure if elected: relying on a long-dormant 19th century law known as the Comstock Act.
Key Facts
The Comstock Act, originally passed in 1873, bans the mailing of any “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” including “every article or thing designed, adapted, or intended for producing abortion” and anything “which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
Court rulings since the law’s passage have limited how obscenity can be prosecuted and narrowed the scope of the statute—with the Justice Department noting in a December 2022 memo that it regards the law as now only applying to mailing things that would facilitate unlawful abortions—and the act has laid dormant for decades, given that Roe v. Wade long legalized abortion under federal law.
Since it hasn’t been repealed, however, anti-abortion rights advocates have been seizing on the Comstock Act in the wake of the Supreme Court overturning Roe in 2022, with Republican lawmakers writing in a court brief that it bars the mailing of abortion pills and activists reportedly using it as a legal basis to draft plans for former President Donald Trump to ban abortion should he win reelection.
Vance was among a group of GOP lawmakers who sent a letter to Attorney General Merrick Garland in January 2023 asking for him to enforce the Comstock Act and “shut down all mail-order abortion operations,” opposing the DOJ’s December 2022 memo that stated abortion pills could be mailed under federal law, including to states where the procedure is banned.
Policy proposals outlined in Project 2025—a sweeping policy blueprint by private right-wing organizations for the next conservative president to overhaul the executive branch—also call for the DOJ to enforce the Comstock Act to ban the mailing of abortion pills.
While Project 2025 specifies using the law to ban the mailing of abortion pills, legal experts have noted the law could also be used in a much more sweeping way to bar abortion medications and equipment from being mailed to hospitals or clinics, effectively prohibiting abortion entirely.
What To Watch For
Democratic lawmakers introduced legislation in June that would repeal the Comstock Act, as the law has been increasingly pushed by the right. The bill hasn’t moved forward at all yet, however, and it’s unlikely to pass a GOP-controlled House and divided Senate.
What We Don’t Know
What Trump will do on abortion if he’s reelected. The ex-president has taken a less restrictive approach to the issue than Vance has, saying he would leave the issue up to states over trying to push a national ban. He’s also not under any obligation to follow Project 2025’s policy proposals, and has sought to distance himself from the effort, even as it was crafted by many former members of his administration. Abortion rights advocates largely believe Trump would listen to allies and conservative activists and take some action against abortion if elected, and the ex-president also has a history of changing his views on abortion.
How Could Trump Use The Comstock Act?
Since the Comstock Act is already federal law, Trump could conceivably use it as the basis for an executive action that bans or restricts abortion on day one of his presidency, without the need for any congressional approval. A Trump-appointed attorney general could also issue guidance authorizing going after abortion providers under the law. “All it takes is an administrative decision from the Department of Justice that they are going to go after people for violating Comstock,” Drexel University law professor David Cohen told BBC News. “The friction involved is very low, other than winning an election.”
Surprising Fact
While anti-abortion advocates have been seizing on the Comstock Act, they’re extremely hesitant to actually speak about the law ahead of the November election. Project 2025 materials do not refer to the Comstock Act by name, and lawyer Jonathan Mitchell—who drafted Texas’ controversial SB 8 abortion ban—told the Times that anti-abortion advocates are intentionally being quiet about their plans, given how abortion bans have become a liability for the GOP at the ballot box. “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mitchell told the Times. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”
Contra
Vance told “Meet the Press” in July prior to his vice presidential nomination that he now supports abortion pill mifepristone being legal, saying he respects the Supreme Court’s recent opinion that shut down a challenge to the drug by saying the challengers didn’t have standing to bring the case. The senator, who has called for a national abortion ban in the past, did not comment on whether he believes those pills should be allowed to be sent by mail under the Comstock Act, and his Senate office has not yet responded to a request for comment.
Tangent
The Supreme Court’s recent opinion on mifepristone didn’t mention the Comstock Act at all, but right-leaning Justices Clarence Thomas and Samuel Alito supported it during oral arguments in the case, referring to it as a “broad” and “prominent provision” of federal law. That suggests they’d likely support the Comstock Act being used to effectively ban abortion should the issue ever get to the Supreme Court or if the mifepristone debate returns to the court, though it’s unclear how other justices feel about the issue.
Key Background
The Supreme Court overturned Roe v. Wade in June 2022, ending the decades-long federal right to an abortion and spurring GOP-led states across the country to enact abortion bans. Anti-abortion advocates then turned their attention to medication abortion—taking aim at the drugs through both litigation and legislation—as abortion pills have grown in popularity given the ease of accessing them, even when patients are in states banning the procedure. The increased attention on using the Comstock Act to ban abortion without needing Congress’ approval comes as Republican politicians have become cagey ahead of the election about trying to ban abortion on a federal scale, given broad public support for the procedure remaining legal. In addition to Trump saying he’d leave abortion up to the states, the GOP also drew attention for removing its decades-long call for a national abortion ban from the party’s official platform ahead of the election. The language change made it seem that the GOP was tempering its position, but the platform included language indicating support for “fetal personhood”—a more restrictive legal theory granting constitutional rights to fetuses that would necessitate banning abortion nationally if adopted.
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