San Francisco Chronicle - (Sunday)
Trump could end abortion with Comstock Act
During Supreme Court oral arguments on March 26 in a case concerning the availability of mifepristone, a drug that induces abortion, two conservative justices — Clarence Thomas and Samuel Alito — several times referred to the Comstock Act, an obscure statute from 1873 adopted to prohibit the shipment of obscene materials through the mail. It passed after anti-vice crusader Anthony Comstock successfully lobbied Congress to enact expansive laws “to prevent the mails from being used to corrupt the public morals.” The act also prohibited the shipment of “any article or thing designed or intended for the prevention of conception or procuring of abortion.”
Since its passage more than 150 years ago, the Comstock Act and how courts interpret it have changed. The current version prohibits the mailing of “every article or thing designed, adapted, or intended for producing abortion.” It also forbids any “express company or other common carrier” from providing for “carriage” of such items “in interstate or foreign commerce.” The act provides for a prison sentence of up to five years for the first offense and 10 years for the second offense plus a fine.
For over a century, courts gave narrow leeway to the Comstock Act and it has not been used. The Department of Justice said in a December 2022 opinion memorandum that the Comstock Act had been interpreted to apply only to the intentional unlawful shipping of articles intended to produce abortions. The opinion concluded: “Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”
However, the Justice Department’s opinion is not binding on any court or a future presidential administration.
The Comstock Act poses a real threat to abortion in the United States. President Joe Biden and the Democrats in Congress should begin an aggressive campaign for the repeal of the anti-abortion Comstock Act. Even if they fail, it will be a stark and essential reminder that the election of Donald Trump could lead to the end of most abortions in the United States — even in states where abortion is legal, such as California.
A Trump administration Justice Department could criminally prosecute the shipping drugs or anything else that can produce an abortion. This would effectively end abortions by medication, which are now 63% of all abortions, no matter what the Supreme Court rules in the mifepristone case now before it.
Anti-abortion activists and conservative groups are already working on a strategy to enforce the Comstock Act if Trump is elected. Jonathan Mitchell, a law clerk of former Justice Antonin Scalia and activist right-wing attorney who represented Trump in the Supreme Court in February, told the New York Times, “We don’t need a federal ban (on abortion) when we have Comstock on the books.” He also said, “I hope he (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.”
Other right-wing groups aren’t even bothering to “keep their mouths shut.” The Heritage Foundation’s Project 2025, advocating policies for a Trump presidency, puts enforcement of the Comstock Act front and center. The right-wing National Review writes that “now that Roe has been overruled, surely the Department of Justice will enforce these provisions, right? ... anyone who violates these provisions is vulnerable to prosecution in the next administration for violations that occur during this administration.”
Doctors and pharmacists and even friends and relatives of patients who send abortion medications while Biden is president could face prosecution and potential five-year prison sentences if Trump wins because the actions would be within the statute of limitations under the federal law.
That is why President Biden and congressional Democrats should push now for repealing the Comstock Act. Perhaps a few House Republicans in close purple states would join Democrats in doing this, and maybe Senate Republicans would not filibuster in an election year out of fear of voter reaction.
But even if the effort fails in Congress, there is political benefit for the Democrats in raising this issue now. Recent elections have shown that abortion is a crucial issue with voters and a significant majority favor abortion rights, especially early in pregnancy when medically induced abortions occur. Pushing for the repeal of the Comstock Act, including campaign ads, is a powerful way to show voters that the threat to abortion rights is real everywhere in the country if Trump is elected. In what is expected to be a close election in many swing states, the abortion issue could prove decisive in determining whether Biden or Trump is president and whether Democrats or Republicans control Congress.
For 49 years, from 1973 to 2022, under Roe v. Wade, the Comstock Act was irrelevant because there was a constitutional right to abortion. Now that Roe has been overruled, the law is a serious threat to abortion rights and must be repealed.