How Trump could ban abortion without Congress

The Supreme Court rejected a challenge to abortion drugs just a few months ago, but anti-abortion forces are already back with a new lawsuit. The suit would have a devastating impact on abortion rights across the country. But even if it doesn’t succeed, it’s part of a strategy that former President Donald Trump could use to ban abortion nationwide if he wins the White House — even without action from Congress.

Trump has said he would veto a federal abortion ban if it landed on his desk, but the centerpiece of the latest push targeting abortion rights would not require passage of a new law. Instead, it’s the reinvention of one already on the books: the Comstock Act, a 19th-century obscenity law that conservatives claim — with little support in the law’s history or text — is a de facto, no-exceptions ban on mailing, receiving or using the internet to order any abortion-related drug or paraphernalia. On conservatives’ interpretation, the law would make it illegal not just for patients to receive abortion medication through the mail but for doctors to perform abortions in hospitals, because they’d be unable to receive necessary medical equipment and supplies.

Widespread support exists on the right to “revive” Comstock. Virtually every major anti-abortion organization has embraced a Comstock strategy; the Federalist Society recently publicized it; and it’s included in Project 2025, the policy blueprint for a potential second Trump administration that became a political liability for Trump. Sen. JD Vance, before he became Trump’s running mate and sought to veer to the center, also called for the Justice Department to enforce the Comstock Act.

Arguments about Comstock also figured centrally in the recent challenge to the FDA’s approval of mifepristone, a drug used in a majority of abortions in the United States. In that case, Food and Drug Administration v. Alliance for Hippocratic Medicine, the Supreme Court rebuffed abortion opponents in June by ruling the plaintiffs didn’t suffer enough of an injury to confer standing to sue.

Now, three conservative state attorneys general are back with a new Comstock-focused plan to undermine access to mifepristone. The new lawsuit may have as many problems as the last one, but it’s a powerful reminder that conservatives are deadly serious about using the Comstock Act to advance their anti-abortion agenda. The plaintiffs are hoping that the Supreme Court’s conservative supermajority will embrace this reading of Comstock no matter who is in the White House. But even if the suit fails, a Trump Department of Justice could enforce this reading of Comstock — against patients or doctors in any state.

The new case began with an amended complaint from the attorneys general of Missouri, Kansas and Idaho before Judge Matthew Kacsmaryk, the same conservative Texas judge who heard the mifepristone challenge last year and ruled against the FDA.

The suit includes several changes from the initial case. For instance, the new suit doesn’t challenge the FDA’s original approval of mifepristone in 2000; instead, it seeks to overturn a number of agency actions and reinstate earlier restrictions, such as limiting the drug’s use to the first 10 weeks of pregnancy and eliminating a telehealth option on which many patients rely.

The GOP-led states also claim they have the standing that was missing in the case heard by the Supreme Court last year. Rather than having a group of anti-abortion doctors as plaintiffs, the attorneys general themselves are the plaintiffs; they argue that they are injured because they cannot enforce abortion bans within their borders (a particularly perplexing claim as far as Kansas is concerned, where voters have chosen to preserve access to mifepristone). Echoing the pronatalist views of conservatives like Vance, the states also argue that they suffer a concrete injury because fewer children will be born, leading to the “diminishment of political representation” and the loss of “a seat in Congress or qualifying for less federal funding.”

Still, the challenge contains several obvious flaws, both procedural and substantive.

The first problem is that the lawsuit filed by the states is an amendment to their original complaint in Alliance for Hippocratic Medicine, but the Supreme Court effectively put an end to that case by holding that the plaintiff doctors didn’t have standing. Can the states amend a complaint in a case that no longer exists? That’s far from clear.

Then there is the reality that the case was filed in Amarillo, Texas. The strategy behind this choice seems straightforward: Kacsmaryk, the only federal district judge presiding in Amarillo, has deep ties to the anti-abortion movement and has already proven to be sympathetic to the movement’s arguments. But the state plaintiffs in this case have no obvious connection to Texas beyond their effort to intervene in the last mifepristone case Kacsmaryk decided (which, courtesy of the Supreme Court’s decision in June, is dead). How is Texas the proper venue for a case about harms supposedly suffered hundreds of miles away? If those hurdles are overcome, it’s not obvious that the plaintiffs have a better claim for standing than the anti-abortion doctors in the earlier case.

And the complaint suggests that states’ arguments about the Comstock Act are no better than their claims about standing. The states assume without explanation that the Comstock Act should be understood as a de facto abortion ban, despite decades of precedent in which it was not seen as banning the mailing of all abortion-related items and information. But Comstock revivalists who insist the statute’s meaning is plain and absolute are reading 21st-century anti-abortion claims into the remains of a 19th-century obscenity law. They read words out of context, cherry-picking phrases from a much broader statute and ignoring the inconvenient remainder.

They also ignore the history of the statute at the time of enactment, which included items related to abortion and contraception because they encouraged women to have nonprocreative sex, but never established a total ban on mailing these items for reasons related to health care.

If the courts rule against the FDA, it would have huge consequences for abortion access throughout the United States, regardless of state laws. As recent research shows, the availability of mifepristone has made state abortion bans difficult to enforce, and abortion rates have continued to increase since the reversal of Roe v. Wade, even in states that have criminalized the procedure.

But the revival of the Comstock Act is about more than mifepristone.

After the fall of Roe, the anti-abortion movement embraced a new goal: federal recognition of fetal personhood — an objective that, activists hope, would make state-level protections for abortion rights unconstitutional as a matter of federal law. But recognition of fetal personhood doesn’t seem realistic in the near term. Neither does passage of a new federal law prohibiting abortion from the moment of fertilization. That’s the other reason the Comstock Act remains so important to abortion opponents: They could enforce it as it never has been enforced, as a no-exceptions ban on abortion that Americans would never vote to enact.

This scenario becomes very plausible if Trump wins on Tuesday.

A Trump Department of Justice would probably start by enforcing the Comstock Act against companies that ship mifepristone or against so-called shield doctors in states that protect abortion providers who mail pills into states with abortion bans. But there is no reason to think it will stop there. The Comstock Act does not define the term “abortion,” and some anti-abortion advocates define common contraceptives, including emergency contraceptives, IUDs and the birth control pill, as abortifacients. And the statute’s language about obscenity reaches well beyond abortion to address a vague and broadly defined category of items “for indecent or immoral use” — language that could be applied to PrEP drugs for HIV prevention or medications used for in vitro fertilization or gender-affirming care.

Even if the suit from the state attorneys general ultimately fails, the Supreme Court’s conservative supermajority could easily defer to a Trump DOJ’s anti-abortion interpretation of the Comstock Act. Justices Samuel Alito and Clarence Thomas have already signaled that they may be willing to enforce the Comstock Act to operate as a no-exceptions ban.  

The latest challenge to mifepristone, like much of Project 2025, is a window into the agenda of the anti-abortion movement. Claims about the Comstock Act are already here and won’t vanish, no matter who wins the election. Just the same, this suit underscores the importance of the election for an anti-abortion movement that knows it cannot enact a new national ban in the face of fierce popular resistance to Roe’s demise.

Many decades ago, the Comstock Act was enforced through the prosecution of people who spoke out against it. The statute became a graveyard of First Amendment and Equal Protection violations. Reviving Comstock is anti-democratic for these reasons and more: Because abortion opponents want to use the statute to enforce meanings it never had and to criminalize access to health care in ways Americans past or present never have endorsed. But that’s the genius of the Comstock Act strategy. With Donald Trump in the White House, as far as abortion is concerned, it might not matter what voters want.