How the next Republican president could stop most abortions without Congress
Why it matters: While Republicans disagree about whether to pursue a national abortion ban that would face long odds in Congress, a GOP president may be able to unilaterally curb access to medication abortion across the country using an obscure 19th-century law.
State of play: At issue is the meaning of the 1873 Comstock Act, which banned the mailing of "obscene" material like pornography, as well as abortion drugs and contraception. While the law has been cut down over the years, the abortion provision remained but was ignored while Roe v. Wade was in place.
- Medication abortion usually involves the use of two drugs, mifepristone and misoprostol, in the first 10 weeks of pregnancy, and accounts for more than half of abortions in the U.S.
- The Heritage Foundation, which has proposed detailed policies for a potential GOP administration, argues that Comstock "unambiguously prohibits mailing abortion drugs" and says the next administration should "enforce federal law against providers and distributors of [abortion] pills."
- The Biden administration disagrees with this interpretation. A Justice Department memo issued last year contends that the law doesn't prohibit mailing abortion drugs when the sender expects them to be used lawfully.
- A new administration could easily change that interpretation, experts say, and not just restrict patients from receiving pills at home — but also stop pharmacies and health care providers from getting shipments.
- "If Trump were elected, not only would I not be surprised, but I would expect the administration to direct DOJ to overturn its guidance on the Comstock Act and rule that shipping mifepristone through the U.S. Postal Service is a violation of that statute," said Lawrence Gostin, a Georgetown Law professor who supports abortion rights.
- This "would create a significant impediment to access to the most common, safest and most effective method of getting an abortion," Gostin added.
- The Trump campaign did not respond to a request for comment on its thinking about the Comstock Act.
The big picture: The overturning of Roe left the GOP in knots over how to handle abortion, and the topic has become a major liability for the party.
- Even before last week's elections that were seen as a rebuke of abortion restrictions, including in red states, Republican presidential candidates have been hesitant to embrace some of the harshest restrictions enacted by states since Roe's demise.
- Former President Trump, the frontrunner for the GOP nomination, has been vague about restrictions he might pursue.
- These political dynamics make it unlikely that Trump — or any other Republican candidate — will openly embrace Heritage's interpretation of Comstock before the 2024 election.
But a Republican president would likely face intense pressure to do so from anti-abortion groups and members of their own party.
- A group of Republican senators earlier this year warned pharmacies against shipping abortion drugs, adding they will "insist" that the next president rescind DOJ's Comstock Act memo.
- The senators' letter named a long list of anti-abortion groups that were supportive of their efforts.
- Withdrawing the memo "should be one of the first orders of business" for the next administration, which could apply a "more textual and originalist understanding" of Comstock, said Erik Baptist, senior counsel at the Alliance Defending Freedom.
The Comstock Act is also invoked in a closely watched lawsuit challenging the Food and Drug Administration's approval of mifepristone — in which Baptist is the lead counsel — which could reach the Supreme Court this term.
- That lawsuit also argues that Comstock makes mailing abortion drugs illegal in the first place. However, that argument received little attention in lower courts, so the Supreme Court may not consider it.
The other side: Abortion rights advocates argue that interpreting Comstock so literally is ignoring its context and legal precedent.
- They would almost certainly sue to block a DOJ policy change, leaving it to the courts — and possibly the Supreme Court — to decide.
- "It's tailor-made for a Supreme Court that considers itself textualist," said Mary Ziegler, a UC Davis law professor and legal historian. "There's a plausible argument that the language of the statute is unambiguous."
- Taking the statute so literally could have much broader implications for abortion, she added, extending to all forms of the procedure and even prohibiting it under circumstances like endangerment to the life of the pregnant person.
- Ziegler said abortion rights supporters likely haven't put much focus on Comstock to avoid legitimizing GOP arguments as courts consider the legality of mifepristone.
- "I think it's a fear that taking the Comstock Act too seriously would make it more likely that the Supreme Court will take it seriously," she said
The bottom line: "If all of this stuff about Comstock is anything we should remotely take seriously, then a national abortion ban is on the ballot in 2024," Ziegler said.