Portside

The GOP is increasingly discussing the prospect of Donald Trump enforcing a 19th-century law to ban abortion nationwide if he wins a second term, and some Republicans seem desperate to​​ swat away those concerns by telling us not to believe our lying eyes. Throughout the last few months, activists and lawmakers have avoided citing the Comstock Act by name (instead using its statute number), have told the public there’s no way it’d be used for anything other than medication abortion (wrong), and have even commented to the press that Trump should shut up and not mention Comstock on the campaign trail.

Last week, Sen. Tina Smith (D-Minn.) said in a New York Times op-ed that she’ll move to repeal the Comstock Act so Trump can’t weaponize it to enact a national abortion ban, including on procedural abortions. The 1873 law would criminalize sending drugs or devices intended to perform abortions through the mail, or with carriers like UPS or FedEx. Roe v. Wade rendered Comstock unenforceable, but you know what happened to Roe.

When Politico’s Pulse health newsletter covered Smith’s comments, they included an interview with Roger Severino, a former official in Trump’s Department of Health and Human Services. Severino now works at the Heritage Foundation, the ultraconservative think tank behind the so-called Project 2025 playbook for a future Republican administration. Severino wrote the HHS chapter of Project 2025, where he calls for a GOP president to enforce Comstock in order to ban the mailing of mifepristone for telehealth prescriptions, a move that could possibly end medication abortion in clinics if the drugs can’t be shipped. (Severino referred to Comstock in the playbook only by statute number, 18 U.S.C. 1461, a move copied both by 145 GOP members of Congress and by Justice Samuel Alito during arguments in the mifepristone case.)

Severino tried to downplay the potential impact of Comstock to Politico by claiming it couldn’t result in a nationwide ban because Project 2025 only calls for targeting mifepristone, not drugs and supplies that have other medical uses. (I’m reminded that Republicans said overturning Roe was simply about sending abortion “back to the states” and yet, here we are.) Here’s the relevant part, emphasis added:

At least one Trump ally—former Trump administration official Roger Severino—is pushing back on arguments that Comstock enforcement would equate to an all-out abortion ban.

Misoprostol, the other pill in the two-drug medication abortion regimen, can be used on its own to terminate pregnancies—but it also has other non-abortion medical uses. Severino believes the Comstock Act wouldn’t apply to drugs, like misoprostol, or supplies not exclusively used to perform abortions.

“That’s my reading of the law, and I’m a pro-lifer,” Severino, vice president of domestic policy at the Heritage Foundation, told Pulse. “These sorts of things that the left is saying a future President Trump would do can’t actually be done without additional legislation.”

There are a couple of problems with these statements, said Greer Donley, a professor at the University of Pittsburgh School of Law, who was also quoted in the Politico piece. Comstock is “exceptionally broad” and bans the mailing of any article or thing used for abortion—it doesn’t say it’s limited to drugs that are FDA-approved for abortion, she said. Misoprostol is approved for ulcers but is used off-label for abortion, miscarriage management, and labor induction. “There’s literally nothing in the text that would constrain it in the way that it sounds like they’re trying to constrain it,” Donley said.

There’s also the fact that mifepristone does have a non-abortion medical use: as a daily medication for Cushing’s syndrome under the brand name Korlym. Technically, the makers of Korlym submitted it for FDA approval as an entirely new drug in 2011, rather than piggybacking off the existing abortion-related approval from 2000, Donley said. This was likely to try to insulate it from abortion-related restrictions. But it remains the case that mifepristone, as an active ingredient, has a non-abortion medical use, which contradicts Severino’s claim. 

“They’re splitting hairs,” she said. “It’s either based on the use—in which case, miso for abortion, all the instruments used for [procedural] abortion, all that stuff would fall under it—or it’s for the FDA-approved label, but that doesn’t make sense based on the [Comstock] statute.”

Jezebel contacted Severino and the Heritage Foundation for comment and they did not respond by publication time.

Donley thinks this “don’t be ridiculous” posturing feels like damage control, especially given that other anti-abortion activists, including Students for Life, have said Comstock could be used as a nationwide ban. Jonathan Mitchell, architect of Texas S.B. 8 and Trump’s lawyer in the Colorado ballot case, told the New York Times in February: “We don’t need a federal ban when we have Comstock on the books.” Mitchell added, “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth. I think the pro-life groups should keep their mouths shut as much as possible until the election.” Not sure that telling one of the country’s largest newspapers about your plan is a great way to keep your plan under wraps, sir.

An anonymous male attorney who, coincidentally, sounds a lot like Mitchell, also offered his thoughts on Comstock to The Atlantic: “‘It’s obviously a political loser, so just keep your mouth shut. Say you oppose a federal [legislative] ban, and see if that works’ to get elected.”

The subtext of these “keep your mouth shut” comments is obvious: The anti-abortion movement is gaslighting us about the consequences of its Comstock scheming. “They want to have it both ways,” Donley said. “They want to both say in the popular press, ‘Don’t worry, pro-lifers, we have a secret plan for a national abortion ban’ and then also say, ‘Where did you get that idea, you crazy left?’”

That brings us to Trump’s Monday video, in which he said that “states will determine” what their abortion laws are. He notably didn’t say that states should do that instead of the federal government, nor did he promise to veto any abortion ban that miraculously passes Congress. And the biggie: Trump didn’t say a peep about Comstock. Yet the statement, and pre-statement hype, had the likely intended effect of getting credulous news outlets to print that he believes abortion law “should be left to the states.”

Donley was among those not at all reassured by his comments. “Until Trump says ‘I’m not enforcing Comstock,’ we need to treat it as if that is 100% his plan,” she said. Meanwhile, the coverage of Trump’s comments and whether it’s a moderate abortion stance (it’s not) has shifted attention away from this existing law that’s just waiting in the wings. Nearly two-thirds of all abortions performed in the medical system in 2023 were medication abortions, which means “Comstock has the potential to be so much more disruptive” than, say, a nationwide ban at 15 weeks, Donley said.

It’s worth noting that Trump previewed his statement by saying on Sunday that while abortion is an important issue, Republicans “have an obligation to the salvation of our Nation…TO WIN ELECTIONS.” He reiterated this in his video, saying “You must follow your heart on this issue. But remember, you must also win elections to restore our culture and, in fact, to save our country, which is currently and very sadly a nation in decline.”

This evasiveness on federal restrictions isn’t just about Trump returning to power—it should also be understood in the context of his multiple criminal indictments. Trump knows campaigning on a national abortion ban—whether Congressional or Comstockian—would be deeply unpopular. And he wants to win in November not least because winning helps keep him out of prison. Trump and his supporters will say anything about abortion if it helps them achieve their goals.

Articles by Susan Rinkunas

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