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The Zombie Law Trump Wants to Use to Ban Abortion Nationwide [1]

['Melissa Gira Grant', 'Ilyse Hogue', 'Matt Ford', 'Ellie Quinlan Houghtaling', 'Tori Otten']

Date: 2024-02-20  

That same month, as a legal challenge to medication abortion amped up the Comstock threat, Susan Rinkunas at Jezebel warned, “Congress Needs to Repeal This Zombie 1873 Abortion Ban Before It Blows Up in Our Faces.” Today we are no closer to that possibility, even as someone like Mitchell has become more explicit. The only thing he may be nervous about is more people paying attention. The idea that Trump can be kept in the dark until after the election is not unbelievable, but more likely is that Mitchell is hoping to make the Comstock plan sound that much more far-fetched with his “Oh no, please don’t put this in the paper” feint this week.

Since Dobbs, concerns over Comstock’s application have circulated, though they have not led to much action. Since Biden would rather run on “Codify Roe,” that leaves defining the possibilities of Comstock to the right. They are numerous. Some of the earliest fears about Comstock Act enforcement were mainly around speech issues—the Telecommunications Act of 1996 updated the Comstock Act’s prohibitions on using postal mail to include the internet. That update meant that discussing abortion online could come with a potential punishment of up to five years in jail, $250,000 in fines, or both. While no one has ever been charged with violating this provision of this law, and the attorney general at the time told Congress she would not enforce it, the provision remains on the books. It was presumed a dead letter because of Roe. But Dobbs may have given the Comstock Act new life. As I wrote in August 2022, “It is not difficult to imagine that a future anti-abortion presidential administration would seize upon this largely forgotten part of internet law.”

From speech, the Comstock concerns moved to the actual provision of abortion, including self-managed abortion. “The Comstock Act has quietly become a center point of efforts to end access to medication abortion,” as Amy Littlefield at The Nation reported in early 2023. Specifically, she was looking at Mitchell’s work with Mark Lee Dickson—the two men were the architects of the Texas six-week abortion ban known as Senate Bill 8, as well as its unique and controversial enforcement provision, which allowed private citizens to act as deputized bounty hunters, permitted to bring their own cases for cash rewards. Since then, they have already drafted anti-abortion ordinances in New Mexico that incorporate the Comstock Act, and have attempted the same in a number of other states. As Mitchell told The Nation, “I want to get Comstock to the Supreme Court as quickly as possible.”

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[1] Url: https://newrepublic.com/article/179137/trump-comstock-national-abortion-ban

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