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Why anti-abortion advocates are reviving a 19th century sexual purity law

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

After months of questions about what abortion policies he supports, Donald Trump finally addressed the issue this week, first in a video Monday on social media, saying it's up to states to decide their abortion laws. That statement left many of the biggest questions on his stance unanswered.

On Wednesday Trump provided a bit more clarity, telling reporters he would not sign a federal abortion ban if one came to his desk, despitesupporting one at 20 weeks during his first term. But he has yet to address the potential for the FDA to restrict abortion pills, which social conservatives argued for at the Supreme Court in March. And he did not talk about the Comstock Act, a 19th century law that some ardent abortion opponents want to use to restrict the practice.

According to legal experts, Comstock could be used to stop virtually all abortion in the country, including in places it is currently legal. When NPR asked the Trump campaign about his position on Comstock, they declined to address it directly.

Here's what you need to know about the Comstock Act, and what the consequences would be if it is enforced the way some conservatives would like.

What is the Comstock Act?

The Comstock Act (linked here and here at the Legal Information Institute) is an 1873 anti-obscenity law, named after anti-vice crusader Anthony Comstock. The law, which is still on the books, calls for banning the mailing or shipping of "every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance." In addition, it specifically outlaws mailing "every article or thing designed, adapted, or intended for producing abortion."

The intent of the law was not expressly about abortion, according to Mary Ziegler, law professor at the University of California, Davis. Instead, it was about what Comstock and his contemporaries called "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 said.

Of course, abortion pills — as well as many things that might be considered "obscene," "lewd" and so on — are currently sent through the mail. That's because the legal interpretation of the Comstock Act was narrowed repeatedly over the years.

The law's abortion provisions were rendered moot by Roe v. Wade in 1973. But with the Supreme Court overturning Roe in 2022, opponents of abortion rights started viewing Comstock as a way to restrict abortion, without the need for Congress or the courts to do anything.

In particular, that policy is promoted by "Project 2025."

What's Project 2025?

It's the shorthand name for the 2025 Presidential Transition Project, a group of top conservative organizations that came together to strategize for a potential conservative presidency starting next year.

"This is really a plan for conservatives to be ready to hit the ground running Day One, Jan. 20, 2025," said Paul Dans, a former Trump official, on C-SPAN last year. He works at the conservative Heritage Foundation and directs Project 2025.

A major accomplishment of that project thus far is a 900+-page policy roadmap called the "Mandate for Leadership," readymade for a Republican president to enact upon taking office.

And that roadmap calls for a "campaign to enforce the criminal prohibitions" of the Comstock Act "against providers and distributors of abortion pills."

So, could that happen?

What, exactly, the Comstock Act could do is a matter of interpretation, as well as the Department of Justice's discretion.

Many legal experts, like Ziegler, say interpreting the law to limit abortion would undo decades of precedent. Over time, she points out, courts interpreted Comstock to only prevent the mailing of items to be used in illegal abortions.

The Biden administration has issued its own reading of Comstock. In late 2022, the Office of Legal Counsel said that Comstock doesn't prohibit the mailing of abortion pills "because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion."

That is not the stance conservative legal experts take. Josh Craddock, an affiliated scholar at 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 among legal experts NPR consulted as to whether Comstock's prohibitions would apply to in-state shipping of abortion pills.)

Stopping the shipment of pills would significantly curb abortion: Medication abortions account for the majority of all abortions in the U.S.

What might the other implications of Comstock be?

It's worth noting that while Project 2025 focuses specifically on the shipping of abortion pills, Comstock refers to banning the mailing of anything used in abortions.

That means the DOJ could enforce the law much more broadly than pills, and effectively end abortion in the U.S., says David Cohen, law 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 said.

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

That's why the debate around Comstock is one of the biggest fears among abortion rights supporters ahead of November's elections. Because the law is so broad, Ziegler adds, it could be used to stop the transport of things well beyond items used in abortions. She points out, for example, that the law doesn't define "abortion."

"If you don't agree on what abortion is, it's also unclear what that abortion ban provision interpretation would mean," she said. Some abortion rights opponents, for example, consider use of the morning-after Plan B pill to be abortion.

There's yet another way the law could have far-reaching effects: It has a five-year statute of limitations, according to 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 said.

Has Comstock gained traction outside of Project 2025?

Comstock has gained traction with many powerful Republicans. Last month, Supreme Court Justices Samuel Alito and Clarence Thomas cited the law – seemingly approvingly – during oral arguments in a case about the availability of abortion pills.

Erin Hawley, the attorney arguing for restricting the pills, cited it as well:
"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 said.

In addition, nine Republican senators in early 2023 wrote letters to the heads of major pharmacy chains, warning them against distributing abortion pills. The senators in particular pointed out Comstock's five-year statute of limitations, meaning that if chains distribute the pills now, they could theoretically be prosecuted during a Trump administration.

Abortion restrictions are proving unpopular. Would Trump use it?

NPR asked the Trump campaign for his position on Comstock. The campaign did not answer the question. Instead, they said in a statement, "President Trump supports preserving life but has also made clear that he supports states' rights."

The silence on the issue may be strategic. One major Comstock proponent, Jonathan Mitchell, told the New York Times this year that he hopes Trump doesn't know about the law, because "I just don't want him to shoot off his mouth." He added that he thinks anti-abortion-rights groups should also keep quiet.

That makes sense 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 said. "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 would not talk to NPR on the record for this story. NPR also tried to reach Gene Hamilton, the Trump administration official who wrote the Project 2025 "Mandate for Leadership" chapter advocating for the Comstock Act. We received no response. Susan B. Anthony Pro-Life America, a leading anti-abortion-rights group involved in Project 2025, pointed us to The Heritage Foundation.

The Heritage Foundation — which, again, led Project 2025 — also declined to comment for this story.

For his part, Craddock — who wants to restrict abortion via Comstock — thinks the law is worth talking 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 worried.

Jennifer Lawson, vice president of organizing and electoral campaigns at the Planned Parenthood Federation of America, told NPR that the organization is focused for now on trying to reelect Joe Biden. But should Donald Trump win the presidency, they are preparing for potential policy outcomes.

"We're doing scenario planning," she said, including planning potential legal 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 currently pushing to repeal Comstock, though it's not clear how the repeal could pass a closely divided Congress.

The Biden campaign, which is making abortion a major part of their campaign against Trump this year, 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 said in a statement.

Copyright 2024 NPR. To see more, visit https://www.npr.org.

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Danielle Kurtzleben is a political correspondent assigned to NPR's Washington Desk. She appears on NPR shows, writes for the web, and is a regular on The NPR Politics Podcast. She is covering the 2020 presidential election, with particular focuses on on economic policy and gender politics.