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Policy experts lay out a possible future for the Comstock Act


Policy experts lay out a possible future for the Comstock Act

Apr 16, 2024 | 12:44 pm ET
By Elisha Brown
Policy experts lay out a possible future for the Comstock Act
The U.S. Supreme Court could decide the future of a key abortion pill, mifepristone, more than a year after the nation's highest court overturned Roe v. Wade allowing states to decide their own abortion laws and bans. (Getty Images)

Former President Donald Trump, the Republican presidential frontrunner, released a nearly five-minute video last week about abortion, saying the issue should be left to the states.

Despite Trump’s latest abortion stance, a Republican-led administration would have avenues outside of Congress to limit abortion rights nationally.

A policy brief released Monday by KFF, a nonprofit health care research organization, details how abortion rights opponents and a Republican-led Department of Justice or Food and Drug Administration could revive the Comstock Act, an 1873 anti-obscenity statute, to pursue limitations on abortion pills, the most common way to terminate pregnancies in the U.S.

The brief mentions Project 2025 and the “Mandate for Leadership,” an agenda and document released by the conservative think tank Heritage Foundation, which lays out conservative policy goals a GOP-ran executive branch could implement. The blueprint outlines that a Republican White House could enforce the Comstock Act to ban the mailing of abortion medication.

A version of the law, which also prohibited the mailing of abortifacients, is still on the books. Under President Joe Biden, federal officials have said Comstock only bans the mailing of abortion pills if the sender knows that the pills will be used unlawfully. But the Office of the Legal Counsel’s December 2022 opinion is non-binding and could be cast aside if Biden loses reelection.

“Although many of the arguments presented by anti-abortion advocates focus on the mailing and distribution of mifepristone, a literal interpretation of the Comstock Act would implicate more than just this medication,” the brief’s authors wrote. “It could also bar the distribution of misoprostol — the other drug used in the medication abortion regimen — and materials used in procedural abortions, such as dilators and suction catheters, and even gloves and speculums.”

Trump has not publicly stated his opinion on the dormant Comstock law.