ACLU Applauds Effort to Repeal Comstock Act

Trump’s allies have pledged to use the law to try to ban abortion nationwide

June 21, 2024 11:30 am

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WASHINGTON — Leaders in the United States House and Senate yesterday introduced legislation to prevent the Comstock Act from being weaponized as a nationwide abortion ban. This legislation responds to promises by allies of former President Donald Trump to use a fringe interpretation of the Comstock Act to effectively ban abortion nationwide if he were to win a second term.

The threat to misuse this outdated law to ban abortion in all 50 states comes from a chorus of Trump allies including the crafters of Project 2025, which has laid out a strategy for Trump’s second term; as well as Jonathan Mitchell, who is Trump’s lawyer, the architect of the 2021 Texas abortion ban, and on the shortlist to be Trump’s attorney general. Mitchell explained his view stating that “We don’t need a federal [abortion] ban when we have Comstock on the books” and that he hopes Trump “doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth.”

Any such attempts to use the Comstock Act in this manner would be illegitimate. As the American Civil Liberties Union recently outlined, threats to use the Comstock Act as a backdoor nationwide ban defy long-standing rulings by federal courts and the Justice Department that the law does not apply to lawful abortion care.

Statement from Madison Roberts, senior legislative counsel, ACLU:

“Trump’s advisors are quietly plotting to bypass Congress and misuse a 150-year-old law to attempt to ban abortion in every state in the country. They are arguing that the Comstock Act is a de facto national abortion ban already on the books, and they are wrong. The Department of Justice has made clear and federal appeals courts have uniformly held for almost a century that the Comstock Act does not apply to legal abortion care. But anti-abortion extremists have manipulated laws to ban abortion before, and they are promising to do it again – even in states that have passed statutory and constitutional protections for abortion.

“We applaud leaders in Congress for introducing the Stop Comstock Act to fight back against extremists’ threats to misuse Comstock as a nationwide abortion ban. We will continue to work with elected leaders to raise the alarm and neutralize this potential anti-abortion attack before Trump allies get the chance to launch it.”

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