This article is part of a series from the Center for American Progress exposing how the sweeping Project 2025 policy agenda would harm all Americans. This new authoritarian playbook, published by the Heritage Foundation, would destroy the 250-year-old system of checks and balances upon which U.S. democracy has relied and give far-right politicians, judges, and corporations more control over Americans’ lives.
For decades, the far right has pushed radical and dangerous ideas that have already successfully stripped Americans of some of their fundamental reproductive freedoms. However, an authoritarian playbook from the Heritage Foundation, called Project 2025, reveals that the eradication of the constitutional right to abortion in Dobbs v. Jackson Women’s Health Center was just the first step in a long-term plan to exert complete control over reproductive freedom for all Americans. Notably, Dobbs was brought to the U.S. Supreme Court by a prominent member of the advisory council of Project 2025, Alliance Defending Freedom.
Project 2025 outlines how far-right extremists plan to destroy the impartial and independent role of the U.S. Department of Justice (DOJ) to legitimize a misapplication of the Comstock Act, which bans the mailing of items deemed obscene. For the past half-century, Comstock has been viewed as a 150-year-old unenforceable relic that is unconstitutionally vague. By banning Food and Drug Administration (FDA)-approved abortion care from being delivered via mail, far-right extremists can criminalize the provision and distribution of medication abortion, which is the most common form of abortion care in the United States. And by criminalizing medication abortion via mail, these extremists will effectuate a de facto abortion ban while avoiding a more unpopular and likely unsuccessful process with Congress.
By criminalizing medication abortion via mail, these extremists will effectuate a de facto abortion ban while avoiding a more unpopular and likely unsuccessful process with Congress.
This column analyzes how Comstock, as written, is not the real threat to abortion access. Rather, Project 2025’s plan to upend checks and balances by overriding the impartiality of the DOJ in order to misapply Comstock and effectuate a national abortion ban poses the real threat to Americans’ reproductive freedoms and to the nation’s nearly 250-year-old system of democratic governance.
Read more on Project 2025 and the Comstock Act
The Comstock Act is an unenforceable relic that does not inherently pose a threat to abortion access
The Comstock Act has never been officially interpreted by federal courts, federal agencies such as the U.S. Postal Service (USPS), or Congress as an enforceable statute that enables the blanket criminalization of abortion access via mail. It has never been used to prosecute the use of medication abortion or the mailing of abortion-related materials. Rather, Comstock is an unenforceable relic that has been uniformly understood as applying only to unlawful abortions. Given that it is nearly impossible to determine whether the intent of the person who is providing or mailing medication abortion or abortion-related materials is unlawful, it is nearly impossible to prosecute. However, far-right extremists are vowing to misapply Comstock in order to change that.
The text in Project 2025 on Comstock
Although the term “Comstock” is not directly used in Project 2025, it is explicitly referenced by statute on p. 594 of Project 2025’s Mandate for Leadership:
Announcing a Campaign to Enforce the Criminal Prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail. Federal law prohibits mailing “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.
The Comstock Act commonly refers to a set of two laws that are officially codified as 18 U.S.C. 1461 and 1462, with the USPS charged with its enforcement. They are considered to be anti-obscenity laws, as opposed to anti-abortion laws, because abortion is not defined in the text itself. The first law, from 1873, bans the interstate mailing and receiving of mail that is “obscene, lewd, or lascivious” writings, as well as “any article or thing designed or intended for the prevention of conception or procuring an abortion.” Anyone who violates the law as a first-time offender faces up to five years in prison, with a maximum sentence of up to 10 years for a second-time offender. Congress enacted a similar law in 1909 banning the use of an express company or common carrier to mail “any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use.”
Since its inception, Comstock has not readily applied to legal abortions. In a pre-Roe v. Wade era, there was a string of litigation from the 1930s and 1940s that established a commonly held understanding in the courts that the act only applied to unlawful activity. Several judicial rulings from this time explicitly relied upon and deferred to the lack of congressional interpretation on the matter. In 1971, Congress made the only meaningful amendment to the Comstock Act pertaining to reproductive care, following the landmark Supreme Court ruling in Griswold v. Connecticut that voided the restrictions on contraception for married couples in 1965. In 1973, Roe v. Wade rendered the abortion provisions in Comstock inapplicable by establishing a constitutional right to abortion care. Furthermore, in the decades before and after Roe, the USPS itself adhered to the “unlawful” interpretation of the Comstock Act.
The DOJ opinion explicitly stated Comstock should not be interpreted literally because there is no way to determine the intent of the sender.
Lastly, even after the Dobbs decision, the Biden administration’s DOJ confirmed that Comstock only applies to unlawful abortions. The DOJ opinion explicitly stated Comstock should not be interpreted literally because there is no way to determine the intent of the sender. The agency confirmed that Comstock has not been used as a tool of prosecution because there are multiple legal uses of medication abortion in most states, including to save the life of a pregnant person. Notably, the DOJ’s interpretation is not binding on future administrations.
How criminalizing medication abortion via mail functions as a de facto abortion ban
Medication abortion is an FDA-approved regimen involving two medicines that can be safely used for early abortion care up to the first 70 days, or 10 weeks, of pregnancy. It is the most common form of abortion care, accounts for more than half of all abortions in the country, and has been used safely and effectively by more than 4 million women since it was first approved in 2000. A key reason why far-right extremists want to ban abortion care via mail is because it effectively dismantles barriers to abortion access for patients and providers post-Dobbs. Medication abortion, which can safely be taken in the privacy of one’s own home through the use of telehealth and the mail, has not just surged since the Dobbs decision but also prevented the reproductive health care crisis from worsening. Furthermore, it has been essential to maintaining access; wait times have dramatically increased at clinics in states where abortion is legal due to women traveling from other states to seek care, stretching providers past capacity.
Far-right extremists intend to misapply Comstock as a backdoor national abortion ban and weaken the democratic system of governance
Although the DOJ is founded on the principles of independence and impartiality, Project 2025 explicitly directs the DOJ to enforce Comstock against “providers and distributors” of medication abortion.
If the legal, congressional, and agency precedent on the vast limitations and realities of enforcing Comstock are disregarded—which Project 2025 explicitly plans to do—far-right extremists can destroy long-standing norms on the impartiality of the DOJ and use its powers as a means to a political end. And not only will far-right extremists usurp the DOJ to greenlight a far-right agenda that threatens the integrity of the institution itself, but they will also push for Comstock to be inaccurately enforced as a de facto national abortion ban while avoiding the legislative process entirely.
As a powerful entity that can levy and prosecute federal criminal and civil charges, a far-right DOJ could exploit its authority to broadly criminalize various aspects of the mailing of medication abortion and abortion-related materials. For example, in terms of who can be prosecuted, although “providers and distributors” are specified as entities to be prosecuted under Project 2025, ultimately, these two groups encompass a broad range of stakeholders. A far-right DOJ could interpret it to include the variety of providers who prescribe medication abortion, such as physicians, pharmacists, nurse practitioners, and physician assistants; the USPS and independent carriers such as FedEx; drug manufacturers that create generic versions of mifepristone and misoprostol; and others. A prosecution could be limited to the medicine itself or broadly based to include materials commonly used in surgical abortions, such as dilators and suction catheters. Moreover, the DOJ has the authority to decide what punishment can be attached to a Comstock violation, including potential felony charges, severe monetary fees, loss of professional license, and prison time. Cumulatively, a far-right DOJ can destroy—from start to finish—the entire system of medication abortion via mail.
Conclusion
Even though the Republican Study Committee’s recent proposed budget included a national abortion ban, Jonathan F. Mitchell, a key architect of Project 2025 and lifelong anti-abortion advocate, said succinctly to The New York Times, “We don’t need a federal ban when we have Comstock on the books.”
The strategy outlined in Project 2025 would allow far-right extremists to bypass the step of gathering public input that would be part of the traditional legislative process and would circumvent the democratic process in their effort to ban abortion. This would also allow individual lawmakers to avoid the public backlash and accountability that would come with passing this policy via the legislative process.
The Project 2025 plan for Comstock makes it clear that far-right extremists are willing to override and bypass the democratic norms of checks and balances to reach their goal of a national abortion ban.