Since Hunter Biden’s pardon, President Joe Biden has been under pressure to improve his clemency record — which is the lowest of any president in modern history — and now some abortion rights supporters are joining those calls.
They are specifically urging Biden to preemptively mass pardon abortion providers and patients to protect them from prosecution under 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.” But a mass pardon would not come without risks, some legal experts say.
The law, while unenforceable when Roe v. Wade was in place, could make the mailing of abortion pills illegal if President-elect Donald Trump chooses to enforce it. Some anti-abortion activists want to go further and enforce Comstock as a national abortion ban. Trump has indicated he’s not interested in enforcing the Comstock Act, but Pam Bondi, his pick to lead the Justice Department, is seen as an ally in the anti-abortion movement.
A preemptive pardon “needs to happen,” Lizz Winstead, founder of Abortion Access Front, said. “I don’t think Trump gives a shit, which gives Pam Bondi a whole lot of leeway to give a shit, and I don’t think Trump would care if Pam Bondi … enforced it or not.”
Outgoing Sen. Laphonza Butler, former president of the abortion rights group EMILYs List, told NOTUS that while “I wouldn’t know how” a Comstock preemptive pardon would work, Biden should use “every minute that possibly can be used … to talk about and understand all of those opportunities.”
Others in the abortion rights movement, though, say there are significant risks to consider, given the gray area the law is in.
Rep. Becca Balint, who is leading House Democrats’ efforts to repeal the Comstock Act, told NOTUS that Democrats “do need to try to think about all possibilities” when it comes to dealing with the law as a threat, but added that there are “so many unintended consequences” that could come from a mass pardon.
The Justice Department issued a memo in 2022 stating that, under Comstock, mailing abortion pills is illegal only when “the sender intends them to be used unlawfully,” effectively protecting medication abortion providers and patients.
Biden granting a pardon for people who may have violated the law could essentially reverse that guidance.
“One of the sort of hesitations I have is, are these people actually violating the Comstock Act? That isn’t a settled legal question,” said Mary Ziegler, a law professor at the University of California, Davis, who specializes in abortion issues. “Issuing pardons is risky in the sense that it would absolutely be used against people going forward if the Biden administration is essentially saying, ‘Yes, we were wrong, and these people are violating the Comstock Act.’”
At least 20 state attorneys general, led by Missouri Attorney General Andrew Bailey, have already said they disagree with the Justice Department’s current interpretation and have threatened to enforce the law via civil lawsuits. (Bailey is also in the process of trying to take over the abortion pill case that the Supreme Court initially dismissed in an effort to have a friendlier court rule on the case.)
Granting clemency to abortion providers and patients would need to be done through a pardon by proclamation, which would not single anyone out in the text itself. Jimmy Carter issued such a proclamation in 1977, pardoning people who evaded the Vietnam War draft, and Biden also issued proclamations pardoning thousands of people who were convicted of possessing or using marijuana.
However, people need to individually apply — online or by mail — in order to get a certificate from the government that says the pardon applies to them.
“If it’s somebody who has to come forward to claim the pardon, would that just be sort of like a ready-made database for somebody like Andrew Bailey to begin state prosecutions?” Ziegler said.
There is one clemency petition, filed by the Foundation for Individual Rights and Expression, that is asking Biden to posthumously pardon D.M. Bennett, who in 1877 was convicted of violating the Comstock Act for mailing a pamphlet that Anthony Comstock, the creator and enforcer of the law, found to be obscene.
While the violation does not deal with abortion, the petition specifically mentions how the law can be used to threaten abortion access and argues that while granting clemency would not overturn the law, it would “send the important message that Victorian-era laws should not be revived to undermine Americans’ individual rights.”
“In short, granting this pardon request is needed not just to correct the injustice imposed on D.M. Bennett 145 years ago. It is also necessary to serve as a positive reminder of why the Comstock Act was a historical mistake,” the petition says. “It is important not just to correct past errors, but also to help forestall current threats.”
Some abortion rights advocates in general believe that Biden will not grant a sweeping Comstock pardon to abortion providers and patients, not because of the potential negative impact, but because “[h]e has never given a shit about abortion,” said Renee Bracey Sherman, a prominent abortion rights advocate.
“The reality is he’s not going to do shit,” Bracey Sherman told NOTUS. “He only pretended to care about it to win an election, then he got sidelined, and now he’s a lame duck. He doesn’t care about abortion. He never has. He never will.”
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Oriana González is a reporter at NOTUS.