Donald Trump is talking out of both sides of his mouth when it comes to abortion.
On the one hand, Trump often claims credit for the Supreme Court’s decision to strike down constitutional rights to abortion — and he should, since he appointed three Republicans to the Supreme Court. All joined the court’s 2022 decision to allow abortion bans. As Trump told Fox News last summer, “I did something that no one thought possible. Got rid of it Roe v. Wade“
At the same time Trump at least Claims he has no interest Signs new federal law banning abortion. When a reporter asked Trump whether he would sign such a ban last month, Trump’s answer was a resounding “no.”
Behind the scenes, however, many of Trump’s closest allies have touted plans to ban abortion in all 50 states without requiring any new federal legislation. The linchpin of this plan is Comstock ActA long-defunct, 1873 law that, among other things, prohibited “any drug, medicine, article, or thing designed, adapted, or intended to produce abortion” from being mailed or otherwise transported by an “express company.” purposely such as UPS or FedEx.
Anyone who violates this Act Faces up to five years in prison — and doubles the maximum sentence for repeat offenders. Thus, anyone supplying abortion drugs, or any devices used for surgical abortions, could potentially face such extraordinary sanctions that the transit of such products would cease.
Many of the leading proponents of using Comstock to ban all abortions, moreover, could be very influential in a second Trump administration, if that happens. The Heritage Foundation’s Project 2025, for example, advocates for Comstock to ban abortion drugs. 920-page mega-white paper Policy Outline for Trump.
Similarly, Jonathan Mitchell, one of Trump’s personal lawyers and the architect of a Texas law that allows virtually anyone to collect donations from abortion providers, boasted to the New York Times that “We don’t need a federal ban if Comstock is on the books“
There are very strong legal arguments that Comstock cannot be used to effectively ban abortion, at least in places where abortion is legal. There are laws Not applied seriously for nearly a centuryAnd a long line of court decisions Going back to at least 1915 The Comstock Act read narrowly to prevent it from being used as a general ban on all abortions.
Still, these precedents only make sense if the Supreme Court chooses to follow them and rely on the same judges who overruled them. Ro Respecting previous pro-abortion decisions is always a dangerous bet. It will become even more dangerous if Trump gets to appoint more justices.
And, even if the Court ultimately decides to narrowly follow past decisions reading Comstock, months or years will pass between Trump’s Justice Department decision to file criminal charges under the Comstock Act and the Supreme Court’s decision to halt those proceedings. In the interim, few, if any, distributors of drugs and medical supplies risk shipping anything that could expose them to prosecution.
So, while there is considerable uncertainty about whether a second Trump administration could permanently end all legal abortions in the United States by enforcing the Comstock Act, it is possible, at the very least, that a Trump Justice Department could stop it. Abortion care for months or even years while the courts were sorting out what to do with the Comstock prosecutions.
So where does Comstock Law come from?
The Comstock Act is a relic of a more sane era in American history, but one when the kind of personal rights that modern Americans take for granted did not effectively exist.
Much of the law is unconstitutionally vague. It is intended to make it a crime to mail “Every obscene, obscene, obscene, obscene, obscene or obscene articleobject, thing, instrument, or substance,” “for any obscene or immoral purpose.” Comstock and similar laws inspired a century of litigation. Just to define what the word “obscene” meansAnd it is any item that is “obscene,” “filthy,” or “sinister.”
Similarly, the Act imposes a strict censorship code, targeting any “writing” that can be used for “any indecent or immoral purpose”—a provision that violates any reasonable understanding of First Amendment rights to free speech.
The Comstock Act is named after Anthony Comstock, a 19th-century anti-vice crusader who wielded it and similar state laws as indiscriminately against artists, writers and reproductive health providers as he did against actual pornographers. Comstock once successfully brought criminal charges against an art gallery owner for selling reproductions of famous nude paintings. He boasted after the suicide of a woman arrested for selling contraceptive pills, that she was the 15th person targeted by one of his investigations to take her own life.
The censorious values that the Comstock Act created, in other words, are quite alien to most modern Americans. The law stems from an era when women couldn’t vote, when reproductive health care was much cruder and less reliable than it is today, and when Congress thought it was a good idea to ban books and the arts.
Will today’s courts actually allow Comstock to apply against abortion providers?
A 2022 memo A very strong case for a narrow reading of the Comstock Act is presented by the Justice Department’s Office of Legal Counsel. The memo argues that the law does not prohibit shipping or otherwise transporting abortion drugs “where the sender does not intend that the recipient of the drugs will use them illegally.”
Thus, under the current Justice Department’s reading of the law, abortion-related materials may still be sent to states where abortion is legal. They may be sent if the sender does not know that the recipient intends to use the item for an illegal purpose.
As the memo notes, federal appeals courts have held for more than a century that the Comstock Act should not be read as a general ban on shipping any abortion-related item. inside Bores v. United States (1915), for example, the United States Court of Appeals for the Seventh Circuit held that the statute must be given a “reasonable construction” to permit physicians to advertise in the mail that they will perform a life-saving abortion.
Later decisions read the statute more narrowly. An important court decision among the Second Circuit decisions interpreting the Comstock Act. A package of US vs. Japanese pessaries (1936), held that the statute applies only when someone sends an item so that it can be used for an illegal purpose.
Comstock Act, One package In conclusion, “the importation, sale, or conveyance of articles which may be intelligently employed by conscientious and competent physicians for the saving of life or the well-being of their patients was not to be prevented.” Accordingly, the court ruled that the statute should be read to target only “unlawful” activity.
However, the Supreme Court has never expressly accepted its reasoning scholarship or One package, this is likely because the Court’s constitutional decisions have rendered the Comstock Act irrelevant for decades. According to the court’s decision Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) established a constitutional right to contraception, thus preventing Comstock from using it for purposes of birth control. And RoOf course, until very recently prevented the government from banning abortion.
Nevertheless, there are strong legal arguments supporting the proposition that cases prefer One package Stay good law today and should prevent almost any lawsuit under the Comstock Act. The Justice Department noted in its memo that the Postal Service “accepted the Court’s narrow construction of the statute in administrative rulings, and informed Congress of the agency’s acceptance of that construction” when Congress amended the law. Griswold to essentially remove its provisions targeting contraception.
Generally, when Congress amends a statute that has been consistently interpreted in a certain way by the courts, Congress is understood to approve the courts’ reading of that statute. As held in the Supreme Court Texas Department of Housing and Community Affairs v. Inclusive Community Project (2015), “If a word or phrase … is given a uniform interpretation by an inferior court … the later version of the statute that perpetuates the word is presumed to carry that interpretation forward.”
Many states, meanwhile, apply a doctrine known as “”out of date” criminal laws that remain on the books, but which have not actually been used for a long time. As the West Virginia Supreme Court said in a 1992 opinion, “a statute that prohibits certain statutes that have not given rise to an actual trial in 20 years is unfair to a person selectively prosecuted under it.”
That said, this same West Virginia opinion also cautioned that the depravity doctrine does not cover specifically reprehensible acts — “If no one had been prosecuted under the vague statute prohibiting ax murders since Lizzie Borden’s acquittal, we would still permit prosecution under that statute. “—so even if the US Supreme Court were inclined to embrace this doctrine, a Republican-controlled court might view abortion as morally equivalent to murder.
Ultimately, in other words, the fate of the Comstock prosecution is unlikely to depend on whether Congress approves it One package, or whether there is legal support for proposals to cease to operate long-standing criminal laws. The Supreme Court is made up of political appointees, some of whom are willing to ignore the law to achieve partisan goals, and the only way to surely close the Comstock cases is to convince a majority of the justices to do so.
Many Republican judges, meanwhile, are willing to revive long-dead abortion bans. Ro No more around. Just last month, for example, Arizona’s Supreme Court reinstated a Civil War-era ban on abortion — even though the state legislature quickly moved to repeal that ban.
All of this is a long way of saying that the current status of the Comstock Act is highly uncertain, and that the Justice Department will depend on who sits on the Supreme Court if it decides to bring a judiciary under the act. And, even at best, if a future judiciary is willing to do so, merely threat The Comstock prosecution could cut off access to the abortion pill (and potentially the surgical equipment used to perform abortions) across the country.
