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Photo of anti-abortion activists in March for Life 2022.
Anti-abortion activists at the March for Life 2022. Jose Luis Magana/AP

The Conservative Plan to Ban Abortion Without Congress

Anti-abortion advocates hope a Republican president will enforce a series of laws from the 1800s that will “result in the end of abortion in every single state in America.”

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, the fight against abortion has played out on two fronts: political efforts to implement bans in individual red states and legal efforts to prohibit the use of abortion pills everywhere.

But anti-abortion activists have their eyes on a bigger prize: If former President Donald Trump wins a second term in the White House, they hope and expect that he’ll effectively ban abortions throughout the United States by prohibiting the shipment not just of abortion drugs, but any tools doctors could use to induce an abortion.

They’re pinning their hopes on the Comstock Act, a series of laws enacted in 1873 that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.” The law was essentially unenforceable during the Roe era, but a federal judge in Texas ruled in 2023 that the Comstock Act prohibits the shipment of the two drugs used in more than half of all abortions today.

For anti-abortion activists, that’s just the beginning.

As they gather today for the National March for Life in Washington, anti-abortion advocates will emphasize that the movement has its eyes set on further restrictions that can be enacted in the absence of the federal protections Roe provided.

James Bopp Jr., a conservative lawyer and general counsel for the National Right to Life Committee, told NOTUS that, “It’s time to start enforcing the Comstock Act to the extent of its scope.” That’s not just abortion pills, he said, but also “suction machines or things that are used for abortions.”

Anti-abortion activist Mark Lee Dickson, who helped pave the way for Texas’ lawsuit-enforced six-week ban and various city ordinance restrictions, said the Comstock Act should lead to a “de facto” ban on all abortions because “anything that is used” in an abortion is covered by the laws.

“I think that these laws are the laws of America and they have to be upheld,” Dickson said. “And if they’re enforced, that would result in the end of abortion in every single state in America.”

Republican presidential candidates have been under pressure from prominent anti-abortion organizations to back a federal ban. While it is highly unlikely that Congress would be able to pass such legislation, enforcing the Comstock Act could make it much easier for a future GOP administration — likely Trump’s — to severely restrict abortion without lawmakers.

Trump — who has called himself “the most pro-life president” — has publicly said that when the Supreme Court’s Dobbs v. Jackson decision overturned Roe, abortion became a state issue. But The Washington Post reported that the former president was interested in “Washington’s role” in limiting abortion — meaning that anti-abortion groups’ cries may not be falling on deaf ears. The Trump campaign did not respond to NOTUS’ requests for comment.

A former Trump administration official told NOTUS that when it comes to Comstock, it’s possible Trump would pledge to enforce it if it meant he’d get endorsements. “If this conversation with pro-life groups was, ‘I’m reluctant to do a federal ban but I will do these other measures to gain your support,’ would he make a deal like that? Of course, he would,” the official said.

Project 2025, the presidential transition plan backed by many of Trump’s conservative allies and embraced by other Republicans, calls for Comstock’s enforcement. Spencer Chretien, Project 2025’s associate director and previous special assistant to former President Trump, told NOTUS that, “the most intense focus is on the first 180 days, the first six months of the new administration. That’s when the president has the most capital. That’s when you’ve got to go big.” Among the actions that the project considers a priority during this period, Chretien said, is enforcing Comstock.

Anti-abortion activists in March for Life 2020.
Supporters listen to President Donald Trump during the annual March for Life rally in 2020. Evan Vucci/AP Photo

The plan calls for a future president to withdraw a 2022 memo issued by the Biden administration stating that Comstock makes mailing abortion pills illegal only when “the sender intends them to be used unlawfully.” A new GOP-led Justice Department could then issue guidance telling federal agencies how to interpret the law and who should be prosecuted when the law is broken.

“Trump’s close advisers have actual plans to block access to abortion in every single state without any help from Congress or the courts,” Biden campaign manager Julie Chavez Rodriguez said during a January press conference, alluding to Comstock. “Trump isn’t shying away from these aspirations.”

Conservatives and Republicans argue the Comstock Act not only prohibits health providers from mailing abortion pills to patients, but also bars drug manufacturers from mailing them to doctors’ offices — and they believe the Food and Drug Administration should have never approved mifepristone to terminate pregnancies. In approving the pills over 20 years ago, “the federal government is inducing many people to commit criminal acts by authorizing mail-order” abortions, said Erik Baptist, a senior attorney for the conservative law firm Alliance Defending Freedom.

Interpreting Comstock that way would effectively ban abortion pills nationwide — even in states that protect abortion rights. With a broader interpretation of Comstock, women in blue states would be able to access some surgical abortions in places where those tools already are, but the inability to mail devices would lead to a full ban because “there are no abortions that take place in the United States without an item that was sent in the mail,” said Mary Ziegler, a professor of law at the University of California, Davis, who specializes in abortion issues. She added that tools and drugs used in abortions are acquired from “drug companies and medical suppliers” who then ship those to health providers. Prohibiting the mailing of medical devices or abortion pills would force people to “make their own drugs or whatever at home, but then you’re getting into the kind of self-managed abortions that aren’t safe because they’re not being supervised” by medical professionals, Ziegler told NOTUS. “If you can’t put an abortion item in the mail, then you have a de facto abortion ban,” she said.

Robin Marty, executive director of the West Alabama Women’s Center, a clinic that performed abortions before the Dobbs decision, said that items that could be affected by a broader understanding of Comstock include dilators to open a woman’s cervix, pads for post-abortion care, anxiety pills given to patients “as a form of light sedation,” lidocaine for anesthesia, suction devices and other tools — all of which are used in medical care beyond abortion, such as miscarriage management.

“There’s a myriad of things that would be impacted that have nothing to do with abortion itself because it is used in basic gynecological care,” Marty told NOTUS, saying that the consequences would be “devastating.”

Even before Roe granted the federal right to an abortion in 1973, Comstock was rarely, if ever, enforced to prohibit the mailing of instruments doctors use in abortions. After its enactment in the late 1800s, historians say prosecutors focused on banning the distribution of birth control, pornography, advertisements for contraceptives and abortion providers, anatomy textbooks and substances that caused abortions. The bulk of Comstock has been repealed over the years but the language around abortion remains on the books and open to an administration’s interpretation.

NOTUS spoke to several anti-abortion advocates, but none provided any specifics as to how the Justice Department could implement Comstock to bar the shipment of abortion-related tools. Federal law protects some mail from being inspected without a warrant, so it’s unclear exactly how an administration could direct federal officials to open packages when doing so could violate the law.

Some anti-abortion advocates are looking at more innovative ways to bring back the Comstock Act, like invoking the laws in local ordinance restrictions and legal battles. For example, Jonathan Mitchell, a prominent conservative lawyer who worked with Dickson, the activist, to create Texas’ six-week ban, filed a complaint in Texas against three women for allegedly violating the state’s wrongful death statute because they helped another woman get abortion pills to use at home. The suit argues that anyone involved in the pills’ distribution is “jointly and severally liable” for wrongful death under Comstock — opening the door for additional lawsuits.

If courts agree that abortion pill manufacturers “can be sued for wrongful death on the theory that they violated the Comstock laws, that could take the drug off the market,” Mitchell told The Nation. (Mitchell declined NOTUS’ request for comment).

Enforcing Comstock could potentially cross a line that most conservatives have sought to avoid since Dobbs: going after the patients. The law is “draconian,” said a senior White House official, because “it would allow the government to prosecute women themselves” if they receive abortion-related items in the mail. The statute says that whoever receives articles used in an abortion in the mail can be fined and imprisoned for up to five years.

The Supreme Court this term will review a case evaluating the FDA’s 2000 approval of mifepristone, which the plaintiffs partly argue violated the Comstock Act in authorizing the drug. The justices will specifically evaluate a federal appeals court decision that imposed restrictions on mifepristone that did not rely on Comstock “so this issue may or may not be evaluated by the Supreme Court,” Baptist said.

“This is why I think, in part, a Republican president would be a big deal because the Supreme Court can always not address things,” said Ziegler, the law professor. “The only wild card, of course, is that Republicans would face the same political calculus they do now since enforcing the Comstock Act would be deeply unpopular.”

“But there would be a lot of pressure from activist groups to do so,” she added. “Because there’s no fallback. … It’s in the hands of the executive.”

Campaigning on abortion rights has been a major winner for Democrats in the wake of Dobbs: Every state seeking to add constitutional protections — even in purple Michigan and deep red Ohio — has succeeded, and those who heavily campaigned to protect access saw major victories in Kansas, Kentucky and Virginia. Seeing abortion as a driving issue for voters, the Biden campaign has made it a priority ahead of the election, with Vice President Kamala Harris embarking on a “Reproductive Freedoms Tour” this month. But even so, Democrats have not really brought attention to Comstock recently and haven’t tried to repeal or modify it since 1997.

Having Democrats in Congress talk about Comstock, or introduce bills addressing it, could help not only in the presidential elections but also with congressional races. However, lawmakers and abortion rights advocates have been reluctant to talk about it, citing ongoing litigation.

“From a strategic perspective, it takes the issue from something that Republican members of Congress could potentially just defer on … to, well, something that they do have to take a position on,” said Tom Bonier, a Democratic strategist and senior adviser to TargetSmart. “Do they support amending or repealing Comstock or not?”

Support for a total abortion ban is only at about 10%, with most Americans believing it should be legal in at least some circumstances, highlighting how a federal abortion ban would be overwhelmingly unpopular.

“I think the more that Democrats are talking about the consequences for abortion rights of putting Republicans in power, the more likely it is that Americans won’t want to vote Republicans into power,” said Jesse Ferguson, a Democratic strategist.

Oriana González is a reporter at NOTUS.