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WE’VE OFFICIALLY ENTERED THE COMSTOCK GASLIGHTING ERA  
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Susan Rinkunas
April 11, 2024
Jezebel
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_ Republicans are working overtime to say, "'Don't worry, pro-lifers,
we have a secret plan for a national abortion ban' and then also say,
'Where did you get that idea, you crazy left?'” _

From left, Roger Severino, Donald Trump, and Jonathan Mitchell,
Photo: YouTube/Truth Social/YouTube

 

The GOP is increasingly discussing the prospect of Donald Trump
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a 19th-century law
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ban abortion nationwide if he wins a second term, and some Republicans
seem desperate to​​ swat away those concerns by telling us not to
believe our lying eyes. Throughout the last few months, activists
and lawmakers
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avoided citing the Comstock Act by name (instead using its statute
number), have told the public there’s _no way_ it’d be used for
anything other than medication abortion (wrong), and have even
commented to the press that Trump should shut up
[[link removed]] and
not mention Comstock on the campaign trail.

Last week, Sen. Tina Smith (D-Minn.) said in a _New York
Times_ op-ed that she’ll move to repeal
[[link removed]] the
Comstock Act so Trump can’t weaponize it to enact a national
abortion ban
[[link removed]],
including on procedural abortions. The 1873 law would criminalize
sending drugs or devices intended to perform abortions through the
mail, or with carriers like UPS or FedEx. _Roe v. Wade_ rendered
Comstock unenforceable, but you know what happened to _Roe_.

When Politico’s Pulse health newsletter covered
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comments, they included an interview with Roger Severino
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a former official in Trump’s Department of Health and Human
Services. Severino now works at the Heritage Foundation, the
ultraconservative think tank behind the so-called Project 2025
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for a future Republican administration. Severino wrote the HHS
chapter
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Project 2025, where he calls for a GOP president to enforce
Comstock in order to ban the mailing of mifepristone for telehealth
prescriptions, a move that could possibly end medication abortion in
clinics if the drugs can’t be shipped. (Severino referred to
Comstock in the playbook only by statute number
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18 U.S.C. 1461, a move copied both by 145 GOP members of Congress
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by Justice Samuel Alito
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arguments in the mifepristone case.)

Severino tried to downplay the potential impact of Comstock to
Politico
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claiming it couldn’t result in a nationwide ban because Project
2025 only calls for targeting mifepristone, not drugs and supplies
that have other medical uses. (I’m reminded that Republicans said
overturning _Roe_ was simply about sending abortion “back to the
states
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and yet, here we are.) Here’s the relevant part, emphasis added:

At least one Trump ally—former Trump administration official Roger
Severino—is pushing back on arguments that Comstock enforcement
would equate to an all-out abortion ban.

Misoprostol, the other pill in the two-drug medication abortion
regimen, can be used on its own to terminate pregnancies—but it also
has other non-abortion medical uses. SEVERINO BELIEVES THE COMSTOCK
ACT WOULDN’T APPLY TO DRUGS, LIKE MISOPROSTOL, OR SUPPLIES NOT
EXCLUSIVELY USED TO PERFORM ABORTIONS.

“That’s my reading of the law, and I’m a pro-lifer,” Severino,
vice president of domestic policy at the Heritage Foundation, told
Pulse. “THESE SORTS OF THINGS THAT THE LEFT IS SAYING A FUTURE
PRESIDENT TRUMP WOULD DO CAN’T ACTUALLY BE DONE without additional
legislation.”

There are a couple of problems with these statements, said Greer
Donley, a professor at the University of Pittsburgh School of Law, who
was also quoted in the Politico piece. Comstock is “exceptionally
broad” and bans the mailing of any article or thing used for
[[link removed]] abortion—it
doesn’t say it’s limited to drugs that are FDA-approved for
abortion, she said. Misoprostol
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approved for ulcers but is used off-label for abortion, miscarriage
management, and labor induction. “There’s literally nothing in the
text that would constrain it in the way that it sounds like they’re
trying to constrain it,” Donley said.

There’s also the fact that mifepristone _does_ have a non-abortion
medical use: as a daily medication for Cushing’s syndrome under the
brand name Korlym
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Technically, the makers of Korlym submitted it for FDA approval as
an entirely new drug
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2011, rather than piggybacking off the existing abortion-related
approval
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2000, Donley said. This was likely to try to insulate it from
abortion-related restrictions._ _But it remains the case that
mifepristone, as an active ingredient, has a non-abortion medical use,
which contradicts Severino’s claim. 

“They’re splitting hairs,” she said. “It’s either based on
the use—in which case, miso for abortion, all the instruments used
for [procedural] abortion, all that stuff would fall under it—or
it’s for the FDA-approved label, but that doesn’t make sense based
on the [Comstock] statute.”

Jezebel contacted Severino and the Heritage Foundation for comment and
they did not respond by publication time.

Donley thinks this “don’t be ridiculous” posturing feels like
damage control, especially given that other anti-abortion activists
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including Students for Life, have said Comstock could be used as a
nationwide ban. Jonathan Mitchell
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architect of Texas S.B. 8
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lawyer
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the Colorado ballot case, told
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York Times_ in February: “We don’t need a federal ban when we
have Comstock on the books.” Mitchell added, “I hope [Trump]
doesn’t know about the existence of Comstock, because I just don’t
want him to shoot off his mouth. I think the pro-life groups should
keep their mouths shut as much as possible until the election.” Not
sure that telling one of the country’s largest newspapers about
your plan
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a great way to keep your plan under wraps, sir.

An anonymous male attorney who, coincidentally, sounds a lot like
Mitchell, also offered his thoughts
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Comstock to _The Atlantic_: “‘It’s obviously a political loser,
so just keep your mouth shut. Say you oppose a federal [legislative]
ban, and see if that works’ to get elected.”

The subtext of these “keep your mouth shut” comments is obvious:
The anti-abortion movement is gaslighting us about the consequences of
its Comstock scheming. “They want to have it both ways,” Donley
said. “They want to both say in the popular press, ‘Don’t worry,
pro-lifers, we have a secret plan for a national abortion ban’ and
then also say, ‘Where did you get that idea, you crazy left?’”

That brings us to Trump’s Monday video
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in which he said that “states will determine” what their abortion
laws are. He notably didn’t say that states _should_
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that instead of the federal government, nor did he promise to veto any
abortion ban that miraculously passes Congress. And the biggie: Trump
didn’t say a peep about Comstock. Yet the statement,
and pre-statement hype
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had the likely intended effect of getting credulous news outlets
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he believes abortion law “should be left to the states.”

Donley was among those not at all reassured by his comments. “Until
Trump says ‘I’m not enforcing Comstock,’ we need to treat it as
if that is 100% his plan,” she said. Meanwhile, the coverage of
Trump’s comments and whether it’s a moderate abortion stance
(it’s not
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has shifted attention away from this existing law that’s just
waiting in the wings. Nearly two-thirds of all abortions
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in the medical system in 2023 were medication abortions, which
means “Comstock has the potential to be so much more disruptive”
than, say, a nationwide ban at 15 weeks, Donley said.

It’s worth noting that Trump previewed his statement by saying
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that while abortion is an important issue, Republicans “have an
obligation to the salvation of our Nation…TO WIN ELECTIONS.”
He reiterated
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in his video
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saying “You must follow your heart on this issue. But remember, you
must also win elections to restore our culture and, in fact, to save
our country, which is currently and very sadly a nation in decline.”

This evasiveness on federal restrictions isn’t just about Trump
returning to power—it should also be understood in the context of
his multiple criminal indictments
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Trump knows campaigning on a national abortion ban—whether
Congressional or Comstockian—would be deeply unpopular
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And he wants to win in November not least because winning helps keep
him out of prison. Trump and his supporters will say anything about
abortion if it helps them achieve their goals.

_Articles by Susan Rinkunas
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* Comstock Act
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* abortion
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* Donald Trump
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* Project 2025
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