The federal abortion ban plan Team Trump doesn't want you to know about
The architect of a Texas law that entices anti-choice vigilantes with $10,000 bounties supposedly wants former President Donald Trump and his allies to shut up about abortion until after the November presidential election—when right-wingers hope to implement "legally sophisticated" and unpopular forced-pregnancy policies.
After reporting on Friday that Trump "likes the idea of a 16-week national abortion ban" with exceptions for rape, incest, or to save the life of the pregnant person, The New York Times revealed on Saturday that lawyers and strategists in his "orbit" are crafting more complex plans.
"We don't need a federal ban when we have Comstock on the books," attorney Jonathan Mitchell told the Times, referring to a dormant 1873 law heralded by an "anti-vice" crusader that criminalized the shipping of various "obscene" materials, including abortifacients. "There's a smorgasbord of options."
"I hope he doesn't know about the existence of Comstock, because I just don't want him to shoot off his mouth," the lawyer added of Trump. "I think the pro-life groups should keep their mouths shut as much as possible until the election."
Mitchell appeared before the U.S. Supreme Court earlier this month to argue against an effort to remove Trump from Colorado's Republican primary ballot. He previously worked on the Texas vigilante law designed to circumvent Roe v. Wade, the historic abortion rights ruling that the justices—including three Trump appointees—overturned with their June 2022 decision in Dobbs v. Jackson Women's Health Organization.
Calling the existence of the law and its implications "perhaps the worst-kept secret of the post-Dobbs era," The New Republic's Melissa Gira Grant detailed recent coverage of the Comstock Act on Tuesday:
In recent months, numerous opinion pieces from leading experts on abortion, history, and the law, such as law professors David S. Cohen, Greer Donley, Rachel Rebouché, and Mary Ziegler, have warned of these specific plans. There were several at CNN and in the Times itself, and in Teen Vogue and The Atlantic, among others. They follow a trickle of reporting stretching back to the Dobbs decision outlining what legal threats lay on the other side of Roe. Reporters in Texas and reproductive rights reporters have been at the forefront of laying out the Comstock plan and its risks. "I knew about Comstock before Dobbs, but I wanted to say nothing about it," Jonathan Mitchell told Amy Littlefield at The Nation, in a story published in April 2023.
That same month, as a legal challenge to medication abortion amped up the Comstock threat, Susan Rinkunas at Jezebelwarned, "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.
Noting Mitchell's new comments in a piece for Jezebel on Monday, Rinkunas reiterated to Democrats on Capitol Hill that "now would be a great time for you to repeal this zombie ban once and for all."
Since Dobbs, Democratic governors and legislators have worked to protect abortion rights for their constituents and "healthcare refugees" from states where GOP officials have ramped up fights for forced-pregnancy laws. Many of the bans or restrictions recently approved in over 20 states are being challenged in courts that GOP governors and Trump pushed to the right.
At the national level, GOP attorneys and strategists now propose bypassing Congress and "leveraging the regulatory powers of federal institutions," including the Food and Drug Administration (FDA), to enact anti-abortion policies that "could be stopped only by courts that the first Trump administration had already stacked with conservative judges," according to the Times.
"Policies under consideration include banning the use of fetal stem cells in medical research for diseases like cancer, rescinding approval of abortion pills at the FDA, and stopping hundreds of millions in federal funding for Planned Parenthood," the newspaper noted. "Such an action against Planned Parenthood would cripple the nation's largest provider of women's healthcare, which is already struggling to provide abortions in the post-Roe era."
Planned Parenthood and other groups and experts who support abortion rights have been strongly advocating for Democratic President Joe Biden's reelection—and renewed their warnings about Trump's return to the White House in response to the Times reporting.
Quoting from the article, Planned Parenthood Affiliates of California president and CEO Jodi Hicks said on social media Saturday: "They 'are planning ways to restrict abortion rights if he returns to power that would go far beyond proposals for a national ban...' The only thing stopping them from taking your freedom is your VOTE."
Planned Parenthood Texas Votes senior adviser Wendy Davis, a former Democratic state senator, warned that "as bad as things are now, believe me when I say they'll get much, much worse if we don't do everything we can to win in November—at every level on the ballot."
Reproductive Freedom for All president Mini Timmaraju told the Times that Trump is "trying to masquerade in public as a moderate," but if the likely Republican nominee is elected in November, "he's going to do whatever Jonathan Mitchell wants."
Praising the paper's "deep dive" on social media, Timmaraju added that "maybe the most chilling is how confident they are that he can do the most damage in a second term, without Congress, and with judges he appointed."
Biden has come under fire for recent remarks on abortion as well as his administration's support for Israel's war on the Gaza Strip, which has created a maternal healthcare crisis and outraged some "current Planned Parenthood employees, legal experts, nurse midwives, abortion fund workers, and clinic staffers" interviewed by HuffPost.
Still, surely aware of polling that shows abortion bans are deeply unpopular with the American public, the Biden campaign has highlighted his support for reproductive rights on the campaign trail—including with statements from the president and his backers about the Times articles and a new Politico piece on Trump and Christian nationalism.
In one of those statements, ACLU chief advocacy and political officer Deirdre Schifeling stressed that Trump and "anti-abortion extremists at all levels will stop at nothing until our rights are stripped away."
"The majority of Americans strongly support abortion rights. We must elect leaders this year who reflect our values and push to restore abortion access in every state across the country," she added. "The only way we can stop extreme bans is to elect a president, and a House and Senate, that will pass federal legislation to protect abortion rights and reproductive freedom—voters deserve nothing less."