Would Trump Use 150-Year-Old Law to Restrict Abortion?

Donald Trump Holds Presidential Campaign Rally In Green Bay, Wisconsin

Trump can’t be trusted to keep his hands off reproductive rights past election day.
Photo: Scott Olso/Getty Images

Donald Trump is trying very hard to convey the impression that abortion policy won’t be on the table during the second-term administration he hopes to begin next January. As he repeatedly says, the reversal of Roe v. Wade that his Supreme Court nominations made possible leaves abortion policy up to the states, where, he hilariously claims, “all legal scholars, both sides, wanted and, in fact, demanded” it be determined. Problem solved, let’s move on, right?

What really happened is that Trump has grasped two important facts: (1) the winds of public opinion are blowing very hard against abortion restrictions, making this a very bad issue for his 2024 candidacy; and (2) any federal legislation banning abortion nationally isn’t going to happen so long as the Senate filibuster exists, which Senate Republicans are strongly disinclined to do anything about. So he might as well act as though it’s not an issue until he’s in office.

But if and when he is, there’s no particular reason to assume he’ll sustain his hands-off posture. That’s true not just because Trump is a habitual liar, or even because he would undoubtedly have other fish to fry (you know, like pursuing vengeance against his political enemies). It’s also because there are some strategies for restricting abortion that don’t require legislation. Indeed, there’s one strategy that can be rationalized as simply enforcing a law that’s already on the books.

That would be the 1873 Comstock Act, an all-but-forgotten bit of Victorian legislation that is receiving new and unsavory attention from forced birth advocates, as the KFF explains:

The Comstock Act – an 1873 anti-vice law banning the mailing of obscene matter and articles used to produce abortion – could be used by a future presidential administration opposed to abortion rights to sharply restrict abortion nationwide. A literal interpretation of the Act could potentially also apply to materials used to produce all abortions, not just medication abortions; would not have exceptions; and could affect other medical care, such as miscarriage management….

Anti-abortion organizations have asked federal courts to interpret the Comstock Act as a ban on the mailing and distribution of mifepristone– one of two drugs in the medication abortion regimen. While former President Trump has not publicly endorsed the enforcement of the Comstock Act, enforcement of the law has been outlined as a strategy recommended by conservative and anti-abortion leadership.

The recent Supreme Court decision rejecting a challenge to the distribution of abortion medications turned on procedural grounds and didn’t reach the Comstock Act interpretation. But a Justice Department seeking to impose abortion restrictions as a matter of enforcing Comstock could be a different matter. And as New York Times columnist Michelle Goldberg notes, that’s exactly what the people planning a second Trump administration are recommending to him:

The 920-page blueprint for a second Trump administration created by Project 2025, a coalition of conservative organizations, calls for enforcing Comstock’s criminal prohibitions against using the mail — widely understood to include common carriers like UPS and FedEx — to provide or distribute abortion pills. Some MAGA legal minds believe that Comstock could also be wielded to prevent the mail from transporting tools used in surgical abortions. “We don’t need a federal ban when we have Comstock on the books,” Jonathan F. Mitchell, a crusading anti-abortion lawyer who represented Trump before the Supreme Court this year, [explained] in February.

In taking that advice (backed by the leadership of Trump’s avid conservative Christian constituency), a 47th President Trump could simply claim he’s enforcing existing laws governing interstate commerce, not interfering with state prerogatives on the legality of abortion generally. And why wouldn’t he? At that point Trump would be in his final term of office, drifting towards his 80s, and happy to antagonize the liberals who tried to stop his 2024 comeback.

This possibility is motivating Senate Democrats, led by Minnesota’s Tina Smith, to push for a repeal of the abortion provisions of the Comstock Act, as the Washington Post reports:

“There is a very clear, well-organized plan afoot by the MAGA Republicans to use Comstock as a tool to ban medication abortion, and potentially all abortions,” said Sen. Tina Smith (D-Minn.), who on Thursday introduced legislation to repeal the Comstock Act’s abortion provisions. “My job is to take that tool away….”

Sens. Elizabeth Warren (D-Mass.), Catherine Cortez Masto (D-Nev.) and 17 other Senate Democrats have signed on to the legislation, according to Smith’s office. Reps. Becca Balint (D-Vt.) and Cori Bush (D-Mo.) introduced companion legislation in the House, and in an interview Balint said she believed House Democratic leaders support the effort.

Because Republicans control the House and have also been willing to filibuster any and all reproductive rights legislation, this is a classic “messaging bill” designed to draw election-year lines between the parties. In this case, though, the additional purpose is to raise awareness of Team Trump’s plans for use of the Comstock Act so as to built resistance to them before it’s too late. Perhaps Trump will deploy his time and resources on other conservative objectives, but it would not be wise to bet on it.

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