ICYMI: Slate: A Nationwide Abortion Ban Will Be on the Ballot in 2024
November 17, 2023
Key Point: “Heritage argues, the United States already has a national ban, and all that is required is a conservative president willing to enforce it. This approach will offer any future GOP president a quick solution to the party’s political conundrum: Campaign on the status quo, but try to enforce the ghost national ban once in office.”
Slate: The Next Republican President Has a Plan to Ban Abortion Nationwide Without Congress
By: Mary Ziegler
- When voters directly consider the abortion issue, it’s bad news for Republicans, who have lost ballot measure after ballot measure upholding reproductive rights since Roe v. Wade was struck down last year. And to hear GOP primary candidates tell it, the next president won’t be willing or able to do much about abortion, a transparent effort to sidestep a losing issue.
- That’s not what conservative activists think. At least that’s the message sent by Project 2025, the policy playbook crafted by the Heritage Foundation and more than 70 other conservative groups and distributed to each GOP primary candidate.
- Heritage argues, the United States already has a national ban, and all that is required is a conservative president willing to enforce it. This approach will offer any future GOP president a quick solution to the party’s political conundrum: Campaign on the status quo, but try to enforce the ghost national ban once in office.
- The story behind Heritage’s claim begins in the 19th century, with the passage of a sexual purity law that was interpreted to make it a crime to mail or receive items intended, designed, or adapted for abortion. Exactly what the Comstock Act said or meant, not least when it came to abortion, was unclear at the time it passed.
- Heritage argues that federal law prohibits the mailing of any item “advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The only obstacle in enforcing Comstock, according to Heritage, was Roe. Now that the right to choose is gone, Heritage argues, a GOP administration can announce its intention to enforce the Comstock Act on Day 1. The next step could be prosecutions in federal court of anyone, anywhere in the country, who is involved in receiving or mailing an item knowingly for abortion.
- Any effort to enforce the Comstock Act—rather than simply frightening drug companies and abortion providers into compliance—will result in litigation. Those defendants will insist that Heritage’s interpretation is all wrong, contradicting precedent and pretending to interpret the plain meaning of a text that is anything but straightforward. They may even say that Heritage’s interpretation of Comstock is unconstitutional.
- Voters may wonder if Trump wouldn’t resurrect Comstock, or if the Supreme Court will agree with Heritage’s interpretation, or if a Trump Department of Justice will prioritize an attack on abortion.
- What is clear is that the architects of Project 2025 are confident that a second Trump term could be just as transformative for abortion rights as the first one was. Courtesy of Anthony Comstock, and regardless of whether Congress lifts a finger, an abortion ban is on the ballot—whether or not voters want one.