Would Be Great If CNN Asked the GOP Candidates About the 1873 Zombie Law That Could Ban All Abortions

The Comstock Act is a 19th-century statute that bans mailing abortion-relation items, and all a GOP president has to do is tell their cabinet to enforce it.

Would Be Great If CNN Asked the GOP Candidates About the 1873 Zombie Law That Could Ban All Abortions
From left, Anthony Comstock, Donald Trump, Nikki Haley, and Ron DeSantis Illustration:Getty Images; Shutterstock

Tonight is the fifth Republican debate, the last one before primary voting kicks off with the Iowa caucuses on January 15. While the first debate hosted eight candidates and the fourth one had four candidates, just three candidates qualified for tonight’s event: former president Donald Trump, Florida Gov. Ron DeSantis, and former South Carolina Gov. Nikki Haley. But like the previous debates, Trump won’t be there—this time, he’s doing a Fox town hall instead. So it’ll just be Ron and Nikki.

During the first four debates, moderators asked the candidates vague questions about what they’d do about abortion if elected, and the candidates gave vague answers. DeSantis loves to talk about how restrictions passed in Florida or Iowa may not be right for states like New Hampshire, while Haley keeps claiming an abortion ban can’t pass the Senate. To be fair, the moderators’ questions were mostly focused on passing new laws but still, if they aim to illuminate the candidates’ abortion plans, they’ve been asking the wrong question.

There is a zombie statute from the 19th century still on the books, and it bans the mailing of abortion-related items, meaning a Republican president could simply and easily make his cabinet enforce it. That’s right, we’re talking about banning abortion without Congress.

The Comstock Act of 1873, which was passed by Congress to prohibit the mailing, possession, or sale of “obscene materials,” including abortifacients, could be used to ban abortion pills nationwide. Even worse, it could be used to ban all abortion procedures too, by prohibiting shipments to abortion clinics. To my knowledge, Haley’s never commented on it, neither has DeSantis, and neither has Trump.

In the 2016 and 2020 primaries, the #AskAboutAbortion campaign went viral across social media to get debate moderators to…ask about abortion. But this time around—now that Roe v. Wade is gone—a specific Comstock question matters more than ever. That question should be something like: If elected president, would you enforce the Comstock Act regarding abortion pills or abortion clinic supplies? If yes, how? (See, Jake Tapper and Dana Bash, it’s easy.)

Two of the first four GOP debates were hosted by Fox News, so they probably don’t want voters to know what a Republican president could do without the backstop of Roe. NBC News hosted the third debate about a week before Axios reported that conservative groups like The Heritage Foundation and Alliance Defending Freedom want the next GOP president to use the 150-year-old Comstock Act to ban the mailing of abortion drugs and medical supplies for clinics. So, we’ll give NBC a small pass, even though abortion advocates have been sounding the alarm on Comstock for more than a year, ever since the zombie statute was cited in the lawsuit over the abortion pill. (Lawyers at the right-wing ADF are arguing that case, which the Supreme Court is set to hear sometime before June.)

That’s right, we’re talking about banning abortion without Congress.

The host of tonight’s debate, CNN, has no excuse not to ask about the Comstock Act. Not only has the Axios story been out since November, but just last week, the Washington Post reported on what Trump could achieve without Congress if he had the right people in charge of key departments. Anti-abortion groups implied they would back off their criticisms of Trump’s squishy comments on abortion bans if he appoints staunch anti-abortion advocates to lead the Departments of Justice and Health and Human Services, and if he uses Comstock to clamp down on abortion pills. Why? Well, one, Trump is destroying the field and they’re likely stuck with him. And two, because they know passing legislation is probably off the table. The Post writes: “Roger Severino, who led several antiabortion efforts at HHS under Trump, said the movement is more focused on potential agency actions than passing a national abortion ban, which leaders privately acknowledge is extremely unlikely to make it through a divided Congress.”

Asking about new federal abortion legislation is an incomplete question for moderators; they need to ask about what’s already on the books. Any reporters who get in-person access to GOP candidates should ask about Comstock, too. I do not have that access, but I asked anyway. Jezebel contacted the Trump, DeSantis, and Haley campaigns for comment on whether they’d enforce Comstock with regard to abortion and, if so, how. None of them responded by publication time. I invite reporters at big, national outlets to make the same ask on camera, which is much harder to ignore than an email.

As law professor and abortion historian Mary Ziegler said before the first GOP debate in August: “We are going into 2024 blind when it comes to the enforcement of a law already on the books.”

It’s now actually 2024, and unless reporters press the candidates on this at every opportunity, a lot of people will run into Election Day believing that the fall of Roe was the worst thing that could ever happen to abortion access.

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