Health
JD Vance and Project 2025 want Trump to ban abortion with this law
Topline
Republican politicians have dampened calls for a national abortion ban ahead of the November election — but vice presidential candidate Sen. J.D. Vance, R-Ohio, and authors of the controversial Project 2025 are among those promoting a different tactic that former president Donald Trump could use it to curb abortion. access to the procedure if elected: relying on a long-dormant 19th century law known as the Comstock Act.
Republican vice presidential candidate Sen. JD Vance, R-Ohio, speaks at a fundraiser July 17 in … [+]
Key facts
The Comstock Act, originally passed in 1873, prohibits the mailing of every ‘obscene, lewd, lascivious, indecentany filthy or vile article, matter, thing, device or substance”, including “any article or thing designed, modified or intended to cause abortion” and anything “advertised or described in a manner intended to induce an to induce another to use or use it.” apply it to produce abortion.”
Judgments of the court since the law’s passage has limited how obscenity can be prosecuted and narrowed the statute’s scope — with the Justice Department noting in a December 2022 report memo that it now considers the law to apply only to the sending of items that would facilitate unlawful abortions – and that this law has been dormant for decades, given that Roe v. Wade long legalized abortion under federal law.
However, because this law has not yet been repealed, anti-abortion rights advocates turned to the Comstock Act after the Supreme Court struck down the law. Roo in 2022, when Republican lawmakers in a summary proceedings that it reportedly bans the shipment of abortion pills and activists using it as a legal basis for drawing up plans for former President Donald Trump to ban abortion if re-elected.
Vance was among a group of Republican lawmakers sent a letter to Attorney General Merrick Garland in January 2023 asking him to enforce the Comstock Act and “cease all mail-order abortion operations,” opposing the DOJ’s December 2022 memo stating that abortion pills could be purchased under federal law are sent, even to states where the method is prohibited.
Policy proposals outlined in Project 2025 – a sweeping policy blueprint from private right-wing organizations for the next conservative president to overhaul the executive branch – phone call for the DOJ to enforce the Comstock Act to ban the shipment of abortion pills.
Although Project 2025 specifies that the law should be used to ban the shipment of abortion pills, legal experts have noted the law could also be used in a much more sweeping way to prevent abortion drugs and equipment from being shipped to hospitals or clinics, effectively banning abortion entirely.
What to pay attention to
Democratic lawmakers introduced legislation in June it would repeal the Comstock Act, as the law is increasingly pressured by the right. However, no progress has been made on the bill yet, and it is unlikely to pass a Republican-controlled House of Representatives and a divided Senate.
What we don’t know
What Trump will do on abortion if re-elected The ex-president has taken a less restrictive approach to the issue than Vance, saying he would leave the issue to the states rather than try to push through a national ban. He also has no obligation to follow Project 2025’s policy proposals, and has tried to distance himself from the effort, even though it was created by many former members of his administration. Abortion rights advocates are largely convinced that Trump would listen to allies and conservative activists and take action against abortion if elected. The ex-president also has a history of changing his views on abortion.
How could Trump use the Comstock Act?
Because the Comstock Act is already federal law, Trump could potentially use it as the basis for an executive action that would ban or restrict abortion on the first day of his presidency, without requiring congressional approval. A Trump-appointed attorney general could also issue guidelines that would allow abortion providers to be legally pursued. “All it takes is an administrative decision from the Department of Justice that they’re going to go after people for violating Comstock,” David Cohen, a law professor at Drexel University, told me. BBC news. “The friction associated with this is very low, other than winning an election.”
Surprising fact
Although anti-abortion advocates have seized on the Comstock Act, they have been extremely reluctant to actually talk about the law ahead of the November election. Project 2025 materials do not reference the Comstock Act by name, and attorney Jonathan Mitchell — who drafted the controversial SB 8 abortion ban in Texas — told the Time that anti-abortion advocates are deliberately silent about their plans, given that abortion bans at the ballot box have become a liability for the Republican Party. “I hope [Trump] don’t know about Comstock’s existence because I just don’t want him shooting out of his mouth,” Mitchell told the Times. “I think the pro-life groups should keep their mouths shut as much as possible until the elections.”
In return for
Vance told “Meet the Press” in July, prior to his nomination as vice president, that he now supports making the abortion pill mifepristone legal, and says he respects the recent Supreme Court opinion that ended the challenge of the drug by saying that the challengers were unable to introduce the drug. the case. The senator, who has called for a national abortion ban in the past, did not comment on whether he believes these pills should be allowed to be mailed 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 did not mention the Comstock Act at all, but right-wing Justices Clarence Thomas and Samuel Alito supported it during oral arguments in the case, calling it a “broad” and “prominent provision” of federal law. That suggests they would likely support the Comstock Act used to effectively ban abortion if the issue ever reaches the Supreme Court or if the mifepristone debate returns to the court, although it is unclear how other justices feel about the issue.
Important background
The Supreme Court overturned Roe v. Wade in June 2022, ending decades of federal abortion rights and spurring GOP-led states across the country to enact abortion bans. Anti-abortion advocates then turned their attention to medication abortion—targeting the drugs through both lawsuits and legislation—as abortion pills have grown in popularity due to the ease with which they are available, even when patients are in states that prohibit procedure. The increased focus on using the Comstock Act to ban abortion without congressional approval comes as Republican politicians have grown wary of efforts to ban abortion on a federal scale in the run-up to the election, given widespread public support for it that the procedure remains legal. In addition to Trump saying he would leave abortion to the states, the Republican Party also drew attention to removing its decades-long call for a national abortion ban from the party’s official platform ahead of the election. The language change appeared to make the Republican Party soften its position, but the platform included language indicating support for “fetal personhood” – a more restrictive legal theory that grants constitutional rights to fetuses, which would necessitate a national ban on abortion if it would be adopted.
Read further
