Anti-abortion activists plan backdoor strategy to US ban

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Pro-abortion rights protesters demonstrate outside the Planned Parenthood clinic and office in downtown Manhattan on August 6, 2022 in New York CityImage source, Getty Images

US anti-abortion activists, including allies of Donald Trump, have a strategy to ban abortion nationwide – one that bypasses Congress and the American people. It’s a plan that hinges on Mr Trump’s re-election in November and the use of a little-known 19th Century law.

At this year’s annual “Pro-Life Summit” on 20 January, guests listened to a keynote speech from Marjorie Dannenfelser, head of Susan B Anthony Pro-Life America, one of the country’s most influential anti-abortion groups.

Ms Dannenfelser is widely credited with convincing Donald Trump to appoint three anti-abortion justices to the Supreme Court during his presidential term. In June 2022, those appointees helped overturn Roe v Wade, rescinding the nationwide right to abortion.

It was a generational victory for the anti-abortion movement. The runway had opened, activists said at the time, to an abortion-free future.

But in the nearly two years since, their campaign has stalled in crucial ways. The American public has shown consistent support for abortion access, even in conservative states.

And the movement’s ultimate goal – a federal abortion ban – has remained out of reach, a near-impossibility in a divided Congress that can unite behind few legislative priorities.

The political reality has not escaped anti-abortion campaigners.

Addressing her audience in the grand ballroom of a Washington DC hotel a rapt crowd of the movement’s most devoted followers – Ms Dannenfelser spent nearly half of her speech urging the audience not to lose hope.

“It hasn’t been missed on any of us, right? That it has been hard,” she said. “We all know.”

But anti-abortion activists may have a trump card. Conservative leaders, including allies of Mr Trump, have mapped out a new path to outlaw abortion. The plan could work, experts say, if the former president returns to the White House.

“There could be a de facto nationwide ban that Trump could try to enforce on day one if he wins,” said Mary Ziegler, a law professor at the University of California, Davis, and a leading expert on the US abortion debate. “It’s the Comstock Act.”

Anti-abortion demonstrators gather for a rally in Federal Building Plaza on June 24, 2023 in Chicago, Illinois

Image source, Getty Images

A 150-year-old law

The Comstock Act, championed by anti-vice crusader Anthony Comstock and passed in 1873, made it a federal crime to send or receive any material deemed “obscene, lewd or lascivious”. The statute makes specific mention of birth control and abortion, barring any materials designed or intended for “the prevention of conception or procuring of abortion”.

Over the next century, various court rulings clarified the law’s meaning, gradually narrowing its scope. In 1971, Congress removed most of Comstock’s restrictions on contraceptives and two years later, through Roe, the Supreme Court established a constitutional right to abortion. By then, the act was seen as a largely unenforceable relic, and remained dormant for 50 years.

But now, within right-wing circles, the Comstock Act is being revived.

Without Roe in place to guarantee access to abortion, the logic is straightforward. According to a broad reading of the law, the mailing of any materials related to abortion – through the United States Postal Service and through private carriers like UPS and FedEx – would be illegal.

By preventing any of the medications or tools necessary for the procedure from reaching hospitals and clinics, Comstock would act as an effective block on abortions, getting around the need for Congress to pass any new legislation.

“It is sweepingly broad language,” said Rachel Rebouché, dean and law professor at Temple University Law school, and a leading scholar in reproductive health law. “If it was applied literally, it [Comstock] could be a ban on an abortion in an indirect way, because everything gets mailed to outfit abortion clinics.”

The conservative strategy

Anti-abortion activists and leading conservative groups have started preparing for this approach, crafting legal arguments and political strategies that reinterpret Comstock as an enforceable abortion ban.

Josh Craddock, a lawyer and scholar with the conservative James Wilson Institute, has written extensively against the legality of abortion. He said fellow anti-abortion activists had coalesced around Comstock, describing it as “one of the most promising ways to help advance the cause of life in America right now”.

“It doesn’t depend on Congress to act, or the Supreme Court to rule, there’s already federal law that protects unborn life,” he said. “That’s very black and white.”

Abortion rights advocates demonstrate in front of the Supreme Court of the United States Supreme Court of the United States on Monday, June 13, 2022 in Washington, DC

Image source, Getty Images

Comstock will be raised before the Supreme Court this week as part of arguments from a group of anti-abortion activists and doctors who want federal approval of the abortion drug mifepristone to be withdrawn.

And it has been invoked specifically in the conservative Heritage Foundation’s playbook for the next Republican administration, dubbed Project 2025.

After the Supreme Court overturned Roe, there is no longer any block on enforcing this statute, the Foundation said of Comstock. “The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills,” it concluded, referring to abortion pills.

Project 2025’s abortion section was crafted by former Trump administration official Roger Severino, who declined the BBC’s request for comment through a representative. And the project as a whole includes most major anti-abortion groups on its advisory board, including Ms Dannenfelser’s SBA Pro-Life America and Students for Life, run by Kristan Hawkins.

Can it work?

Anti-abortion activists are excited by the legal theory behind the Comstock strategy. Implementing it in practice will depend on a federal government being willing to enforce the law after decades on the shelf.

But experts insist this is feasible, even likely, with Mr Trump in the White House.

“All it takes is an administrative decision from the Department of Justice that they are going to go after people for violating Comstock,” said David Cohen, a law professor at Drexel University and an expert on abortion law. “The friction involved is very low, other than winning an election.”

Image source, Getty Images

If Comstock was enforced in this way, it would almost certainly lead to a rush of legal challenges and possibly end up in front of the Supreme Court. The effect of a federal ban would be both expansive and deeply unpopular. About 69% of voters think that abortion should be legal throughout the first three months of pregnancy – the period when most abortions occur – according to a recent Gallup poll.

A political liability

That’s why, some critics say, anti-abortion activists have tried to keep their Comstock strategy quiet.

“They [Republicans] know this is unpopular,” said Ryan Stitzlein, vice-president of government relations at the pro-choice group Reproductive Freedom for All, formerly called NARAL. “So they have to find ways to obfuscate or hide the ball.”

In New Mexico, where Comstock has been invoked in efforts to create abortion-free “sanctuary cities”, activists have referred mostly to its statute number – 18 USC 1461 and 1462.

It’s the same with Project 2025. Though the law is quoted directly, the word “Comstock” doesn’t appear a single time in the 920-page document. Only the statute numbers are cited.

A graphic on how US support for abortion has changed since since 2000

Jonathan Mitchell, an anti-abortion lawyer who has championed the Comstock strategy, told the New York Times last month he thought anti-abortion groups “should keep their mouths shut as much as possible until the election”.

And Mr Mitchell, who has represented Mr Trump in the past, reportedly said he hoped the former president didn’t know about Comstock either “because I just don’t want him to shoot off his mouth”. Mr Mitchell did not respond to the BBC’s request for comment.

All eyes on the White House

If Mr Trump does return to the White House next year, his support for Comstock will be necessary for any major enforcement of the law.

He has made no public mention so far of the statute, and his views on abortion more broadly remain fuzzy.

Mr Trump once declared himself “the most pro-life president ever”. More recently, apparently frustrated by Republican election losses linked to abortion bans, he has become publicly critical of tight restrictions, calling on “both sides” to compromise on legislation.

“It could be state, or it could be federal,” Mr Trump said in an interview on NBC’s Meet the Press in September. “I don’t, frankly, care.”

Then, last week, Mr Trump suggested he would support a federal ban on abortions after 15 weeks of pregnancy, with exceptions for rape, incest and the life of the mother.

“The number of weeks, now, people are agreeing on 15, and I’m thinking in terms of that,” he said on the “Sid & Friends in the Morning” radio show on WABC.

Experts told the BBC that if re-elected, Mr Trump would likely approach abortion policy the same way he did in his first term: by deferring to activists in his orbit.

“The business model in the past has been that Trump doesn’t particularly care, but that he assigns responsibility to people who do, who are very conservative,” said the University of California’s Mary Ziegler.

And those who are promoting Comstock now are not fringe characters, she said, but former Trump administration officials and other allies of the former president.

In the Heritage Foundation’s own telling, the first Trump administration “relied heavily” on its policy agenda in 2017, “embracing nearly two-thirds of Heritage’s proposals within just one year in office”.

“It doesn’t mean that Trump is going to go for it. But it does mean that the people who are saying he will have credibility,” Ms Ziegler said. “These are very much Trump-world insiders who have his ear.”

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