Trump’s boasts about returning control over abortion to the states may well prove to be a stopgap measure en route to a blanket ban.
During the presidential campaign, Trump forcefully avowed he did not support a national abortion ban—a position consistent with two-thirds of the electorate—gloating instead that he was responsible for sending the issue back to the states where it belongs. He also distanced himself from the “virally unpopular” Project 2025—the far-right playbook for the next conservative administration.
However, warning signs suggest that Trump may have been pandering to the electorate on both scores. Notably, when his remarks on the campaign trail about a national ban are considered alongside his existing ties to Project 2025, his boast about returning control over abortion to the states may well prove to have been stopgap measure en route to a blanket ban … although perhaps by way of a back-channel strategy.
Although Trump ultimately read the room and went on record opposing a national abortion ban as the election drew near, as late as March of 2024, he floated the idea of a 15-week national ban, stating that the “number of weeks now, people are agreeing on 15. And I’m thinking in terms of that. And it’ll come out to something that’s very reasonable.” And in typical self-congratulatory mode, after casting his vote in the Florida presidential primary, in response to an inquiry from a reporter about a 16-week ban, “we’ll be talking about that soon.”
Stressing his antiabortion convictions, on the anniversary of the Dobbs decision, Trump proclaimed, “Every child, born or unborn, is a sacred gift from God.” Having cloaked himself in religious vestures, he boasted that no one had done more than his administration to “protect the unborn,” and that he was “proud to be the most pro-life president in U.S history.”
As for Trump’s disavowal of any connection to Project 2025, which he disparaged as having been “cooked up by the severe right,” as Andrew Prokop sagely put it: The “severe right is coming from inside the house.” Highlighting this intimate connection, Prokop points to the glowing forward JD Vance penned for Dawn’s Early Light: Taking Back Washington to Save America, a new book by Ken Roberts, president of the Heritage Foundation and titular head of Project 2025. Infused with violent overtones, Vance writes we “are now all realizing that it’s time to circle the wagons and load the muskets. In the fights that lay ahead, these ideas are an essential weapon.”
Trump’s connections to Project 2025 reach well beyond Vance. A CNN investigation revealed that “nearly 240 people with ties to both Project 2025 and to Trump, covering nearly every aspect of his time in politics and the White House—from day-to-day foot soldiers in Washington to the highest levels of his government.” Looking ahead to his second term, Trump has tapped Project 2025’s “authors and influencers” for key positions in his new administration.
Most relevant for present purposes, the chapters touching upon abortion were penned by two key officials in Trump’s first administration—Gene Hamilton from DOJ and Roger Severino from HHS. Severino has chillingly predicted that Trump’s track record of having “adopted the most pro-life policies of any administration in history … is the best evidence … you could have of what a second term might look like.’”
Given that Trump’s effort to distance himself both from a national abortion ban and Project 2025 may have been an electoral strategy, we now consider the potential interplay between the two to red flag the hazards of the upcoming second term. From here, we factor in the role Pam Bondi, Trump’s pick for attorney general, is likely to play in ensuring that his self-proclaimed legacy as the “most pro-life president” in our history is perpetuated.
Although Project 2025 does not contain an explicit call for a national abortion ban, the forward, which has not received as much media attention as it merits, strongly points in that direction. Authored by Vance’s right-wing icon Ken Roberts, in a clear overture to fetal personhood, he condemns Roe v. Wade for “facilitating the deaths of tens of millions of unborn children.
In a strident call to action, he asserts that Dobbs was “just the beginning,” and exhorts conservatives in “the states and Washington, including the next conservative Administration [to] push as hard as possible to protect the unborn in every jurisdiction in America” by seizing control over what remains of reproductive freedom.
The 922-page report contains three distinct strategies for moving the needle closer to this goal. Not surprisingly, two take aim medication abortion, which, according to the Guttmacher Institute, now accounts for 63 percent of all abortions in the formal healthcare system, and is accordingly condemned by Project 2025 as “the single greatest threat to unborn children in a post-Roe world.”
First, Project 2025 calls for the resurrection of zombie Comstock Act in order to criminalize the mailing of abortion pills. Dating back to the Victorian era, this law is named after anti-vice crusader Anthony Comstock who successfully lobbied Congress to criminalize the sending of “obscene” materials through the mail, defined to include drugs and any article “adapted or intended” to produce an abortion in order to cleanse the nation of sexual sin. The act was subsequently amended to criminalize the conveyance of “obscene” material, by way of common carriers and interactive computer services.
We don’t need a federal ban when we have Comstock on the books.
Jonathan Mitchell, architect of Texas’ six-week abortion ban
According to a January 2023 memo from the Biden administration’s DOJ, this long-dormant law only applies to the sending of abortion pills where the sender intends for them to be used illegally. Given that “there are manifold ways in which recipients in every state may use these drugs … without violating state law,” there is virtually no way this intent can be established.
This memo, however, is not binding on future administration, and it is a safe bet that under Bondi’s leadership (discussed below), the DOJ will read the law quite differently. Underscoring this likelihood, Vance together with 40 Republican members of Congress sent a letter in response to Attorney General Garland demanding the memo be rescinded or redrafted because it “twisted the plain meaning of [Comstock] in an effort to promote the taking of unborn life.” It further insisted that that the DOJ was constitutionally required to enforce the law in order to halt the abortion industry’s dangerous and deadly political agenda.
Project 2025 also targets cross-border abortion care, which it callously refers to as ‘abortion tourism’—as if being forced to leave one’s home state to avoid parenthood by way of legal fiat is akin to a vacation.
Ehrlich
Claiming that the “politicized approval process was illegal from the start,” the second line of attack on medication abortion is a demand for the revocation the FDA’s approval of mifepristone, which is the first pill in the two-drug regime that is common in the United States. Since mifepristone has been subject to an ongoing legal challenge, providers have been preparing to move protocol using only misoprostol—the second of the two drugs. However, there is nothing to say that the antis won’t come for misoprostol next.
Project 2025 also targets cross-border abortion care, which it callously refers to as “abortion tourism”—as if being forced to leave one’s home state to avoid parenthood by way of legal fiat is akin to a vacation. It calls upon HHS to “use every available tool … to ensure that every state reports exactly how many abortions take place within its borders” including the mother’s state of residence. This level of surveillance and reporting is certain to create fear and confusion and may well be intended to lay the groundwork for the criminalization of interstate abortion travel.
Although there are some indications that support for Project 2025 may be fading, as reported in the New York Times, close Trump allies have been working behind the scenes to develop a “sweeping and legally sophisticated” agenda aimed at decimating “abortion rights and abortion access from a variety of perspectives.” As with Project 2025, revivification of the moribund Comstock Act is a critical plank in this radical antiabortion agenda.
As envisioned by key strategists, such as Jonathan Mitchell, architect of Texas’ six-week vigilante abortion law and Trump’s lawyer before the Supreme Court in the Colorado ballot case, the revival of Comstock would not be limited to the criminalization of the abortion pill as demanded by Project 2025. Instead, in keeping with the act’s full reach, the distribution of any article used to produce an abortion would be criminalized, thus potentially shuttering abortion providers in all states by way of a de facto ban. As Mitchell gleefully put it, “We don’t need a federal ban when we have Comstock on the books.”
The fact that Comstock is already “on the books” means that it could be implemented through executive action without any congressional involvement. This brings us to the question of what Trump actually had in mind when he ostensibly disclaimed support for a national ban. Given that he had batted around the possibility of new federal legislation banning abortion at 15 weeks, this disavowal may well not have extended to the resurrection of the zombie Comstock law. Supporting this supposition, Mitchell expressed the hope prior to the election: Trump “[did] not know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” and suggested that “pro-life groups should keep their mouths shut as much as possible until the election.”
Bondi will be a key player in any such scenario, as the job of enforcing Comstock belongs to the DOJ. A fierce Trump loyalist, after serving two terms as Florida’s attorney general, with a clear antiabortion and anti-LGBTQ record, Bondi joined the America First Policy Institute (AFPI) as the head of its legal division. A “pro-Trump think tank,” AFPI’s antiabortion agenda emanates from its foundational dogma that “the U.S. was founded on the belief that human life is sacred.” Accordingly, “[p]utting America first means rejecting abortion radicalism and protecting the most vulnerable” (emphasis in original). In short, as Bondi put it in celebrating the overturning of Roe v. Wade, AFPI “stands with the unborn.”
Although she is staunchly “pro-life,” it is not clear from the record whether Bondi will press to have the DOJ enforce the Comstock Act. Doing so, however, would certainly buttress Trump’s unabashed delight in himself as being the most “pro-life president” in our history.
We will not go quietly into the night and allow our country to be transformed into a border-to-border abortion desert, without a fierce fight to ensure that abortion-protective states preserve their chosen status for the benefit of their own residents and those seeking care from abortion ban states.
