Inside the ‘Diabolical’ Campaign to Ban Abortion Pills by Rebranding the Comstock Act

Essentially, since people in the U.S. overwhelmingly support legal abortion, groups like AUL can’t loudly announce their unpopular end goal of banning it nationwide. But they can try to criminalize the most common abortion method by claiming they want to enforce existing law.

Thompson compared this trafficking rhetoric to the Richard Nixon aide eventually admitting that the administration’s drug war wasn’t really about the drugs, it was just a vehicle to criminalize antiwar protestors and Black people. In 1994, Nixon’s former White House Counsel, John Erlichman, said that by “getting the public to associate the hippies with marijuana and blacks with heroin” they could “arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.” 

There are echoes of that strategy now. “They know that people do not believe in what they’re pushing,” Thompson said. “So to shift [public opinion], you have to start saying all these people are criminals.” In other words, anti-abortion organizations just see this statute as an opportunity to effectively ban abortion pills. AUL comes out and says so in its paper, writing that the Supreme Court’s punt on a mifepristone case “​​underscores the urgency for the pro-life movement to strategically leverage existing federal law to curtail abortion nationwide.”

Screenshots from the Americans United for Life policy paper that refers to Comstock as a “federal abortion pill anti-trafficking law.”

Long before invoking the war on drugs, conservative groups dubbed abortion pills “chemical abortion,” as if to suggest the FDA-approved medicines are harmful and unsafe. And in the past year, states have moved to classify mifepristone as a “controlled substance” and make possession without a prescription a crime. Louisiana was the first state to do so, and Texas and Idaho lawmakers are considering copycat proposals.

This rebranding attempt is not only dangerous, it’s ahistorical. The Comstock Act was an anti-vice and sexual morality statute pushed by a man, Anthony Comstock, who wanted to ban pornography and other sexual material like sex toys and contraception, MacIvor Thompson said. The law banned sending anything “obscene, lewd, or lascivious” in the mail. But AUL’s paper says Congress passed the law to “encourage public virtue and prohibit acts contrary to America’s moral heritage” and, as is common with Comstock revivalists, it does not mention the porn part.

Yet prosecutions were more commonly for pornography and gambling than for birth control or abortion, and, crucially, enforcement of the Comstock Act did not target legal abortion, MacIvor Thompson said. Comstock viewed birth control and abortion as helping women cover up their misdeeds.

Another important point: The FDA didn’t even exist when it passed. “They’re using a 19th-century law to try to make something illegal that we now have a completely different social and medical context for,” she said. “It doesn’t make any legal sense. It doesn’t make any scientific or medical sense. But the fact that it exists, it is an avenue that Comstock revivalists see as a way to get a federal ban on abortion without ever having to have Congress weigh in.”

If ordinary Americans understood the history of the Comstock Act in terms of its passage and enforcement, I think they would say ‘this is kind of ridiculous.’

Once again, access to abortion is popular, so enforcing a “drug trafficking” law probably sounds better to normie voters than what would really be happening: resurrecting an 1873 anti-vice law dreamed up by a Victorian prude. “In no universe can we compare an FDA-approved set of medications or medical protocol to cocaine or fentanyl,” MacIvor Thompson said. “They’re using this rhetorical strategy to link these things, but they are not linked.”

She further noted that this false framing could be a tactic to get around a different and quite significant optics problem. “The Dobbs case promised essentially to return abortion and the decisions around it to the states, and then here we are reviving a dead-letter law to create a federal ban.” Anti-abortion groups praised Roe for sending the issue back to the states, and they’re now turning around to argue that there was a dormant nationwide ban on the books all along. As the AUL paper notes, “Following the overturn of Roe, the national abortion pill trafficking law can be used to save preborn lives and effectively prohibit abortion nationwide.”

“It is people who need to say, ‘absolutely not. That is nonsensical, it is not logical, and we’re not doing it with you,’” said Thompson of Pregnancy Justice. “We have to remember that folks have a voice and that this is about trying to make people think they don’t.” There will be people who choose to test unjust laws in order to be arrested and they will need public support. “That is not everybody’s lane, and it shouldn’t be everybody’s lane,” she said. “That’s what it’s going to require, because when these things are subjected to the light of day, they cannot stand. And the reason why we’re being overwhelmed with the shock and awe of bullshit is because they do not stand when they have to justify themselves.”

Still, conservatives just talking about Comstock, especially as an “abortion pill trafficking law,” could be an attempt to scare people out of using pills. There’s already a “toxic brew of state surveillance” that creates the idea, Thompson said, “that you’re always being watched, and you’re always this close to being arrested to make people change their behavior—which is to not use the abortion drugs, even though it is not illegal for a pregnant person to actually use them.”

For now: Know your rights, download Signal to protect your texts as much as possible, and don’t talk to cops.