When Donald Trump was asked about the recent Florida Supreme Court decision upholding his adopted state's abortion ban, he promised that he would announce where he stands this week, a sign of how tricky the politics of reproductive rights have become for the man who did more than any other to roll them back. Sure enough, on Monday, he unveiled his latest position in a video statement that attempted to thread the needle between his anti-abortion base and the majority of Americans who want abortion to be legal.
Trump's address was, naturally, full of lies, including the absurd claim that "all legal scholars, both sides," wanted Roe v. Wade overturned, and the obscene calumny that Democrats support "execution after birth." But the most misleading part of his spiel was the way he implied that in a second Trump administration, abortion law will be left entirely up to the states. "The states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land, in this case the law of the state," he said.
Trump probably won't be able to dodge the substance of abortion policy for the entirety of a presidential campaign; eventually, he's going to have to say whether he'd sign a federal abortion ban if it crossed his desk and what he thinks of the sweeping abortion prohibitions in many Republican states. But let's leave that aside for the moment, because when it comes to a second Trump administration, the most salient questions are about personnel, not legislation.
Should Trump return to power, he plans to surround himself with die-hard MAGA activists, not the establishment types he blames for undermining him during his first term. And many of these activists have plans to restrict abortion nationally without passing any new laws at all.
Key to these plans is the Comstock Act, the 19th-century anti-vice law named for the crusading bluenose Anthony Comstock, who persecuted Margaret Sanger, arrested thousands, and boasted of driving 15 of his targets to suicide. Passed in 1873, the Comstock Act banned the mailing of every "obscene, lewd, lascivious, indecent, filthy or vile article," including "every article, instrument, substance, drug, medicine or thing" intended for "producing abortion." Until quite recently, the Comstock Act was thought to be moot, made irrelevant by a series of Supreme Court decisions on the First Amendment, contraception and abortion. But it was never actually repealed, and now that Trump's justices have scrapped Roe, his allies believe they can use Comstock to go after abortion nationwide.
"We don't need a federal ban when we have Comstock on the books," Jonathan F. Mitchell, Texas' former solicitor general and the legal mind behind the state's abortion bounty law, told The New York Times in February.
A resurrected Comstock Act wouldn't just stop women from ordering abortion pills through the mail. It could also prevent doctors and pharmacies from dispensing them, since neither the Postal Service nor express carriers like UPS and FedEx would be allowed to ship them in the first place. And it would give the Justice Department a rationale for cracking down on the networks that help provide pills to women in states with abortion bans.
Some interpretations of the Comstock Act might curtail surgical abortion as well, since supplies used to perform them travel through the mail. Abortion could remain legal in some states but become nearly impossible to obtain.
Some anti-abortion leaders, knowing that their schemes are unpopular, don't want Trump to talk about them before he's in office. Speaking of Comstock, a movement attorney told The Atlantic's Elaine Godfrey: "It's obviously a political loser, so just keep your mouth shut. Say you oppose a federal ban, and see if that works."
That is clearly what Trump is trying to do. Whether it works is up to all of us.