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Conservative groups aim to use an 1873 law to virtually end abortions nationwide


Today, after months of questions about what his abortion policy is, Donald Trump finally addressed the issue. In a video posted on his Truth Social platform, the former president said that it is up to states to decide their abortion policies. He did not mention a federal abortion ban, which many in his party back. But there is still a lot that Trump could do to restrict abortion if he's elected, even without the help of Congress. NPR's Danielle Kurtzleben has more.

DANIELLE KURTZLEBEN, BYLINE: Before we get to abortion policy, a refresher on Project 2025.


PAUL DANS: This is really a plan for conservatives to be ready to hit the ground running Day 1, January 20, 2025.

KURTZLEBEN: That's Paul Dans, a former Trump official, on C-SPAN last year. He works at the conservative Heritage Foundation and directs Project 2025, an effort by top conservative organizations to plan for a Republican presidency. One of their policies could virtually end abortions nationwide, according to legal experts, without action from courts or Congress. The idea is to use an 1873 anti-obscenity law called the Comstock Act, named for anti-vice crusader Anthony Comstock. It outlaws the mailing of a wide array of things deemed obscene as well as anything, quote, "intended for producing abortion." Here's UC Davis law professor Mary Ziegler.

MARY ZIEGLER: The concern was not about protecting fetal life. It was about what Anthony Comstock and his colleagues called sexual purity. The fear was, 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.

KURTZLEBEN: Over time, the law was reinterpreted more and more narrowly. And with Roe v. Wade in 1973, Comstock's abortion language became entirely moot. Many legal experts, like Ziegler, say interpreting the law this way would undo decades of precedent. But with Roe gone, Project 2025 wants the Justice Department to enforce the law against abortion pill providers. Even then, though, the law is broader than pills. By banning mailing anything used in an abortion, the DOJ could choose to effectively end the procedure, says David Cohen, law professor at Drexel University.

DAVID COHEN: So 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?

KURTZLEBEN: In addition, Comstock has a five-year statute of limitations, according to Josh Craddock, an affiliated scholar at the conservative James Wilson Institute.

JOSH 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.

KURTZLEBEN: Comstock has gained traction with powerful Republicans. Last month Supreme Court Justices Samuel Alito and Clarence Thomas cited the law 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.


ERIN HAWLEY: 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.

KURTZLEBEN: NPR tried to reach Gene Hamilton, the Trump administration official who, in Project 2025, advocated for the Comstock Act. We received no response. Susan B. Anthony Pro-Life America, a leading anti-abortion rights group, pointed us to the Heritage Foundation. Heritage, which, again, led Project 2025, also declined to comment for this story. There may be good reason for that. One major Comstock proponent, Jonathan Mitchell, told The New York Times this year that he hopes Trump doesn't know about the law because, quote, "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.

COHEN: They know they're not going to win electorally, which is why they want Donald Trump to be quiet about it. 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.

KURTZLEBEN: The Trump campaign also declined to address the Comstock Act specifically to NPR, instead saying in a statement, President Trump supports preserving life but has also made clear that he supports states' rights. Given that abortion restrictions have proven unpopular at the ballot box, it is hard to imagine Trump would announce any plans to use Comstock ahead of the election. But if he wins the presidency, the law is there on the books should he choose to try to use it. Danielle Kurtzleben, NPR News.

(SOUNDBITE OF PHOENIX'S "NORTH") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Danielle Kurtzleben
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.
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