Anti-Abortion Lawyer Doesn’t Want Trump Blabbing About Ways He Could Ban Abortion Without Congress

Jonathan Mitchell told the New York Times he hopes Donald Trump doesn’t know about all the non-legislative ways he could ban abortion, like the Comstock Act.

By Susan Rinkunas | February 19, 2024 | 2:03pm

YouTube/Shutterstock Abortion

Anti-Abortion Lawyer Doesn’t Want Trump Blabbing About Ways He Could Ban Abortion Without Congress

The New York Times in recent days published a pair of stories about how a second Trump administration could restrict abortion now that Roe v. Wade is gone. The first reported that former President Donald Trump privately supports a 16-week federal abortion ban, and the second outlined how, if reelected, he and his appointees could use an existing law to ban all abortions nationwide—and why some activists don’t want Trump talking about that possibility. While the former got a lot of attention, you can probably understand why the latter is a much bigger deal.

That piece, published Saturday, explained that it’s extremely unlikely for Republicans to win enough seats to pass a federal ban through Congress, so activists are working on alternate plans, including enforcing the dormant Comstock Act of 1873 to ban abortion pills, if not explicitly all abortions. The law made it a federal crime to mail, possess, or sell “obscene materials,” including items used for abortions. Though parts of it relating to birth control were repealed in 1971, Comstock has not been repealed in its entirety. An expansive Comstock interpretation could end all abortions, as any clinic that gets supplies shipped across state lines could be found in violation of the law. The law has no exceptions, not even if a pregnant person’s life is in danger.

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Lawyer Jonathan Mitchell, the architect of the Texas bounty hunter abortion ban, told the Times a Republican administration can do a lot to limit abortion without Congress, but he doesn’t want Trump or anti-abortion activists talking about that during the campaign because the GOP keeps losing elections—often thanks to its deeply unpopular stance on abortion.

Look at these quotes:

“We don’t need a federal ban when we have Comstock on the books,” said Jonathan F. Mitchell. … “There’s a smorgasbord of options.”

Mr. Mitchell, who represented Mr. Trump in arguments before the Supreme Court over whether the former president could appear on the ballot in Colorado, indicated that anti-abortion strategists had purposefully been quiet about their more advanced plans, given the political liability the issue has become for Republicans.

“I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mr. Mitchell said of Mr. Trump. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”

If Mitchell doesn’t want voters to know about the threat posed by the Comstock Act before Election Day, that’s an interesting thing to tell the country’s biggest newspaper!

Conservative activists clearly know that Trump would lose if voters really understand the stakes on abortion: As it stands, some Republican or Independent voters who don’t want bans but say they might vote for Trump because they either think 16 weeks is reasonable [note: It’s not!], or that a ban would never get through Congress. Meanwhile, a coalition of activists behind the Heritage Foundation’s 2025 Presidential Transition Project (nicknamed Project 2025) have written up detailed plans on how Trump could use federal agencies to ban abortion; their playbook doesn’t refer to Comstock by name, choosing instead to cite its federal statute number, 18 U.S.C. 1461 and 1462. But if Trump gets back in office, it could very well mean a nationwide ban simply by enforcing the 150-year-old law—right-wing activists just don’t want Americans to know about it.

Sure, if a future Trump administration tried to enforce Comstock, reproductive rights groups would likely sue. But that litigation would end up at the Supreme Court, the same body that let Texas S.B. 8 take effect even when Roe was still the law of the land, and then overturned Roe a few months later. So while you may see people getting riled up about Trump reportedly favoring a 16-week ban (he reportedly said, “It’s even. It’s four months”), know that there are much more disastrous plans afoot.

And Democrats? Now would be a great time for you to repeal this zombie ban once and for all.