Packages of mifepristone tablets are displayed at a household planning clinic on April 13, 2023 in Rockville, Md.

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Packages of mifepristone tablets are displayed at a household planning clinic on April 13, 2023 in Rockville, Md.

Anna Moneymaker/Getty Images

After months of questions on what abortion insurance policies he helps, Donald Trump finally addressed the issue this week, first in a video Monday on social media, saying it is as much as states to determine their abortion legal guidelines. That assertion left lots of the greatest questions on his stance unanswered.

On Wednesday Trump supplied a bit extra readability, telling reporters he would not sign a federal abortion ban if one got here to his desk, regardless of supporting one at 20 weeks throughout his first time period. But he has but to deal with the potential for the FDA to limit abortion drugs, which social conservatives argued for at the Supreme Court in March. And he didn’t discuss the Comstock Act, a nineteenth century legislation that some ardent abortion opponents wish to use to limit the follow.

According to authorized consultants, Comstock might be used to cease just about all abortion within the nation, together with in locations it’s presently authorized. When NPR requested the Trump marketing campaign about his place on Comstock, they declined to deal with it immediately.

Here’s what it is advisable to know in regards to the Comstock Act, and what the implications could be whether it is enforced the best way some conservatives would love.

What is the Comstock Act?

The Comstock Act (linked here and here on the Legal Information Institute) is an 1873 anti-obscenity legislation, named after anti-vice crusader Anthony Comstock. The legislation, which continues to be on the books, requires banning the mailing or transport of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” In addition, it particularly outlaws mailing “every article or thing designed, adapted, or intended for producing abortion.”

The intent of the legislation was not expressly about abortion, in accordance with Mary Ziegler, legislation professor on the University of California, Davis. Instead, it was about what Comstock and his contemporaries known as “sexual purity.”

“The fear was that if people knew about abortion and contraception, which was also outlawed originally, that they would have sex they shouldn’t have, just as if they, you know, looked at pornography,” Ziegler mentioned.

Of course, abortion drugs — in addition to many issues that could be thought-about “obscene,” “lewd” and so forth — are presently despatched via the mail. That’s as a result of the authorized interpretation of the Comstock Act was narrowed repeatedly through the years.

The legislation’s abortion provisions have been rendered moot by Roe v. Wade in 1973. But with the Supreme Court overturning Roe in 2022, opponents of abortion rights began viewing Comstock as a solution to limit abortion, with out the necessity for Congress or the courts to do something.

In explicit, that coverage is promoted by “Project 2025.”

What’s Project 2025?

It’s the shorthand identify for the 2025 Presidential Transition Project, a gaggle of prime conservative organizations that got here collectively to strategize for a possible conservative presidency beginning subsequent yr.

“This is really a plan for conservatives to be ready to hit the ground running Day One, Jan. 20, 2025,” mentioned Paul Dans, a former Trump official, on C-SPAN final yr. He works on the conservative Heritage Foundation and directs Project 2025.

A significant accomplishment of that undertaking up to now is a 900+-page policy roadmap known as the “Mandate for Leadership,” readymade for a Republican president to enact upon taking workplace.

And that roadmap requires a “campaign to enforce the criminal prohibitions” of the Comstock Act “against providers and distributors of abortion pills.”

So, might that occur?

What, precisely, the Comstock Act might do is a matter of interpretation, in addition to the Department of Justice’s discretion.

Many authorized consultants, like Ziegler, say decoding the legislation to restrict abortion would undo many years of precedent. Over time, she factors out, courts interpreted Comstock to solely forestall the mailing of things for use in unlawful abortions.

The Biden administration has issued its personal studying of Comstock. In late 2022, the Office of Legal Counsel mentioned that Comstock does not prohibit the mailing of abortion drugs “because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion.”

That shouldn’t be the stance conservative authorized consultants take. Josh Craddock, an affiliated scholar on the conservative James Wilson Institute, refers to Comstock as a “national abortion pill trafficking ban.”

“A straightforward interpretation of the statute is that it prohibits all interstate shipment or sale of abortion drugs and devices, regardless of whether state law allows abortion,” Craddock says. (There was dispute amongst authorized consultants NPR consulted as as to if Comstock’s prohibitions would apply to in-state transport of abortion drugs.)

Stopping the cargo of drugs would considerably curb abortion: Medication abortions account for the majority of all abortions in the U.S.

What would possibly the opposite implications of Comstock be?

It’s value noting that whereas Project 2025 focuses particularly on the transport of abortion drugs, Comstock refers to banning the mailing of something utilized in abortions.

That means the DOJ might implement the legislation far more broadly than drugs, and successfully finish abortion within the U.S., says David Cohen, legislation professor at Drexel University.

“If you can’t use the mail, FedEx, UPS, whatever, to get supplies, equipment, instruments or pills, how can you run your operation as an abortion provider?” he mentioned.

Craddock agrees: “It has the potential to effectively be a nationwide prohibition against abortion and protection for unborn children,” he mentioned.

That’s why the talk round Comstock is likely one of the greatest fears amongst abortion rights supporters forward of November’s elections. Because the legislation is so broad, Ziegler provides, it might be used to cease the transport of issues properly past objects utilized in abortions. She factors out, for instance, that the legislation does not outline “abortion.”

“If you don’t agree on what abortion is, it’s also unclear what that abortion ban provision interpretation would mean,” she mentioned. Some abortion rights opponents, for instance, contemplate use of the morning-after Plan B pill to be abortion.

There’s one more approach the legislation might have far-reaching results: It has a five-year statute of limitations, in accordance with Craddock.

“If a Republican, for example, were to be elected in November, that administration could prosecute violations of the national abortion pill trafficking ban that are occurring now,” he mentioned.

Has Comstock gained traction exterior of Project 2025?

Comstock has gained traction with many highly effective Republicans. Last month, Supreme Court Justices Samuel Alito and Clarence Thomas cited the legislation – seemingly approvingly – during oral arguments in a case in regards to the availability of abortion drugs.

Erin Hawley, the lawyer arguing for proscribing the drugs, cited it as properly:
“The Comstock Act says that drugs should not be mailed, either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear,” she mentioned.

In addition, nine Republican senators in early 2023 wrote letters to the heads of main pharmacy chains, warning them towards distributing abortion drugs. The senators particularly identified Comstock’s five-year statute of limitations, that means that if chains distribute the drugs now, they might theoretically be prosecuted throughout a Trump administration.

Abortion restrictions are proving unpopular. Would Trump use it?

NPR requested the Trump marketing campaign for his place on Comstock. The marketing campaign didn’t reply the query. Instead, they mentioned in a press release, “President Trump supports preserving life but has also made clear that he supports states’ rights.”

The silence on the difficulty could also be strategic. One main Comstock proponent, Jonathan Mitchell, informed the New York Times this yr that he hopes Trump does not know in regards to the legislation, as a result of “I just don’t want him to shoot off his mouth.” He added that he thinks anti-abortion-rights teams also needs to preserve quiet.

That is sensible to Cohen at Drexel.

“They know [the issue is] not going to win electorally, which is why they want Donald Trump to be quiet about it,” he mentioned. “And they know they’re not going to pass a national abortion ban because that won’t get through Congress. So they’re looking at other ways to do it.”

Mitchell wouldn’t discuss to NPR on the file for this story. NPR additionally tried to achieve Gene Hamilton, the Trump administration official who wrote the Project 2025 “Mandate for Leadership” chapter advocating for the Comstock Act. We acquired no response. Susan B. Anthony Pro-Life America, a number one anti-abortion-rights group concerned in Project 2025, pointed us to The Heritage Foundation.

The Heritage Foundation — which, once more, led Project 2025 — additionally declined to remark for this story.

For his half, Craddock — who desires to limit abortion through Comstock — thinks the legislation is value speaking about.

“I think it’s an important legal issue that people have questions about, should be educated about.”

What are abortion rights supporters saying?

They are fearful.

Jennifer Lawson, vp of organizing and electoral campaigns on the Planned Parenthood Federation of America, informed NPR that the group is targeted for now on attempting to reelect Joe Biden. But ought to Donald Trump win the presidency, they’re getting ready for potential coverage outcomes.

“We’re doing scenario planning,” she mentioned, together with planning potential authorized challenges. “It’s examining the promises that Donald Trump is making and working through what that means as an organization for us and what we would need to fight and how we can protect access in as many places as possible.”

Minnesota Democratic Sen. Tina Smith is presently pushing to repeal Comstock, although it is not clear how the repeal might go a carefully divided Congress.

The Biden marketing campaign, which is making abortion a significant a part of their marketing campaign towards Trump this yr, had this to say: “Trump’s extreme allies have already written the playbook to wipe out access to abortion nationwide without Congress – and they’re ready to implement it if Trump wins a second term,” spokesperson Sarafina Chitika mentioned in a press release.