Opinion: Comstock is Trump and the GOP’s backdoor to a national abortion ban

In an op-ed, Kate Kelly highlights how the 1873 Comstock Act, passed at the behest of Anthony Comstock —  a man so obsessed with abortion providers, he drove one to suicide with his relentless harassment — could be revived by Republicans to enact a nationwide abortion ban.

Should more teenagers get pregnant? Yes, according to the Attorneys General of Idaho, Kansas, and Missouri who argued in a court filing earlier this month that access to mifepristone diminishes teen pregnancy and hurts future potential “loss of federal funds and political representation.” 

State governments forcing teenagers to remain pregnant to get an increase in future tax revenue, along with an increase in infant mortality could become the norm in states around the country should Donald Trump get elected and enforce a new nationwide abortion ban based on mis-application of an existing law on day one of his presidency.  

What we know consistently is that abortion rights are popular. Its popularity has led to success in every statewide ballot measure since Roe v. Wade was overturned, and there will be 10 more on state ballots this November. Eighty five percent of Americans think abortion should be legal. Throughout his campaign, Trump has bragged about how he was the one to overturn Roe v. Wade. 

His unpopular and out-of-touch view has rippled through the GOP and they are hellbent on trying to make their anti-abortion agenda a reality. To achieve a federal ban without having Congress vote, they are attempting to use a hack: the long-dormant Comstock Act.

Comstock is an archaic law Trump and his MAGA allies plan to misinterpret to completely bypass Congress. In fact, Trump’s lawyer, Jonathan F. Mitchell, a key architect of Project 2025 and virulent anti-abortion crusader, put it plainly, “We don’t need a federal ban when we have Comstock on the books.” Trump told us his goal was to overturn Roe v. Wade. Now that they have clearly stated their plan to use the Comstock Act—we need to believe them. 

It’s not just the Project 2025 authors who are hopped up about Comstock. Supreme Court Justices Clarence Thomas and Samuel Alito positively referred to Comstock in the oral arguments last year in Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine (Alliance). 

Their allusion to the Comstock Act did not come out of nowhere. Before oral arguments in FDA v. Alliance, 145 Republican lawmakers urged the court to use the Comstock Act to ban medication abortion nationwide. Though the decision in FDA v. Alliance ultimately found that the anti-abortion doctors did not have standing this time, the fight over Comstock is long from over. 

The Comstock Act is from a time when women and many other people in this country couldn’t even vote. It was first passed in 1873 at the behest of a puritanical crusader against “vice,” Anthony Comstock —  a man so obsessed with abortion providers, he drove one to suicide with his relentless harassment. 

The Comstock Act bans sending so-called “immoral” material via mail. Comstock was never envisioned to ban health care, it was an obscenity law. But, now that Roe v. Wade is gone, today’s anti-abortion zealots want to use the ghost of Anthony Comstock to stop abortions all across the country. Like so many revisionists, they’re trying to draw authority from a past they themselves are inventing. 

Since the overturn of Roe, medication abortion has become more essential than ever, now accounting for at least two-thirds of all abortions in the United States. If the anti-abortion movement eventually convinces the Supreme Court to interpret Comstock as an abortion ban and if Donald Trump is elected and tells his Department of Justice to interpret it in that way—people in every state will be vulnerable. A Trump DOJ could bring prosecutions against patients, doctors, and drug companies—even in states that have state-level protections, successful ballot initiatives and shield laws. 

The end-goal of all these attacks on bodily autonomy are to limit the participation of women and queer people in public life. If we cannot control our own bodies, we cannot be equal citizens. That is the future Trump and his Comstock-obsessed Republican allies want. That’s the “again” they want to return to when they say, “Make America Great Again”—a time when women couldn’t vote, own property or participate as equals in civic life. 

Comstock is already on the books, and resurrecting it will depend on who is in the White House. Trump boasts about overturning Roe v. Wade to this day. We must take him and his MAGA allies at their word. Otherwise, we may end up with more restrictive abortion laws in this country than we had in 1873, where teenagers are forced to give birth to fill state coffers.