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<h1>Organizers Brace for Resurrection of “Zombie” Abortion Laws</h1>

<p>Donald Trump didn’t deliver on many of his campaign promises as president, but he did achieve one of his administration’s stated goals: <a href="https://www.nbcnews.com/politics/donald-trump/trump-was-able-kill-roe-v-wade-rcna84897" target="_blank" rel="noreferrer noopener">overturning <em>Roe v. Wade</em></a>. After appointing three of the five justices who ended the constitutional right to an abortion and <a href="https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death" target="_blank" rel="noreferrer noopener">unleashed a growing tragedy</a>, Trump has <a href="https://www.cbsnews.com/news/trump-abortion-brags-about-role-in-overturning-roe-v-wade-urges-gop-caution-on-issue/" target="_blank" rel="noreferrer noopener">bragged about his role</a> in undoing nearly 50 years of reproductive health care precedent.</p>



<p>But as we face the prospect of another potential Trump presidency, the architects of Project 2025 have made it clear that overturning <em>Roe</em> was just the first in a multistep plan to eradicate access to safe abortion. Though the Republican Party removed a federal abortion ban from its official party platform, there’s something more sinister that’s been hiding in plain sight for 150 years.</p>



<p><a href="https://www.pbs.org/wgbh/americanexperience/features/pill-anthony-comstocks-chastity-laws/" target="_blank" rel="noreferrer noopener">The Comstock Act</a>, signed into law in 1873, made it a federal offense to disseminate contraceptives, abortifacients, and information about either across state lines or through the mail. Named after Anthony Comstock, an anti-obscenity crusader who inspired the title of the biographical book <a href="https://us.macmillan.com/books/9781250174819/themanwhohatedwomen" target="_blank" rel="noreferrer noopener"><em>The Man Who Hated Women</em></a>, the Comstock Law had far-reaching tentacles. Even married couples who used contraception could be sentenced to up to one year in prison.</p>



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<p>Over time, various challenges to the Comstock Act, including <a href="https://law.justia.com/cases/federal/appellate-courts/F2/86/737/1567252/" target="_blank" rel="noreferrer noopener"><em>United States v. One Package</em></a> in 1936, which made it possible for physicians to distribute contraception across state lines; <a href="https://supreme.justia.com/cases/federal/us/381/479/" target="_blank" rel="noreferrer noopener"><em>Griswold v. Connecticut</em></a><em> </em>in 1964, which established the constitutional right to contraception; and, of course, <a href="https://www.oyez.org/cases/1971/70-18" target="_blank" rel="noreferrer noopener"><em>Roe v. Wade</em></a><em> </em>in 1973, essentially made it unenforceable. However, the law was never repealed and has instead become a “zombie law,” a term used to describe laws still on the books that have been overruled by other legal cases. Take, for instance, Arizona’s 1864 abortion ban, a zombie law that became legally viable after the Supreme Court struck down <em>Roe v. Wade</em>. Though <a href="https://apnews.com/article/arizona-abortion-ban-repeal-ac4a1eb97efcd3c506aeaac8f8152127" target="_blank" rel="noreferrer noopener">Arizona’s law was repealed in September</a>, it still remained on the books long enough to instill fear in those <a href="https://www.nytimes.com/2024/04/24/us/abortion-ban-arizona.html#:~:text=Abortion%20providers%2C%20who%20face%20two,abortions%20once%20it%20takes%20effect." target="_blank" rel="noreferrer noopener">seeking and providing abortions in the state</a>.</p>



<p>Now, after the fall of <em>Roe</em>, Project 2025 plans to revive the zombie Comstock Act and make it workable. Since it’s already on the books, Congress isn’t required to pass the Comstock Act. Instead, a president and appointed judges can choose whether to enforce it. Project 2025 architects hope that, if given another term, Trump will do just that.</p>



<h2><strong>A Significant Threat to Abortion</strong></h2>



<p><a href="https://www.pbs.org/newshour/nation/support-for-abortion-access-has-risen-since-supreme-court-overturned-roe-v-wade-poll-finds" target="_blank" rel="noreferrer noopener">Abortion bans are deeply unpopular</a> in the U.S. Since <em>Roe</em> fell in June 2022, <a href="https://www.nytimes.com/2024/08/23/us/abortion-ballot-measures-have-had-success-this-year-is-their-biggest-challenge.html" target="_blank" rel="noreferrer noopener">voters have supported abortion rights</a> every single time the issue has been on the ballot, even in traditionally conservative states like Kansas, Montana, and Ohio. While a national abortion ban could threaten congressional seats for Republicans, it would also require control of both houses of Congress and the executive branch, a higher threshold than simply winning the presidency. So, it seems, the architects of Project 2025 have developed a workaround to meet their aims.</p>



<p>After <em>Roe</em> was overturned, <a href="https://www.justice.gov/olc/opinion/file/1560596/dl?inline" target="_blank" rel="noreferrer noopener">President Joe Biden’s Department of Justice</a> issued guidance about whether the Comstock Act could be used to criminalize someone who receives mifepristone and misoprostol through the United States Postal Service. “We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” the memorandum opinion states. “Federal law does not prohibit the use of mifepristone and misoprostol,” the memorandum continues. “Indeed, the U.S. Food and Drug Administration (‘FDA’) has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy.”</p>



<p>But under a Trump presidency, the DOJ would likely have a different view, especially since Project 2025 explicitly calls for <a href="http://documentcloud.org/documents/24088042-project-2025s-mandate-for-leadership-the-conservative-promise ↗" target="_blank" rel="noreferrer noopener">the enforcement of the Comstock Act</a> “against providers and distributors of [abortion] pills.”</p>



<p>Additionally, the spate of radical, far-right judges Trump appointed during his first term have already proven their willingness to <a href="https://www.nytimes.com/2023/04/11/us/abortion-pill-ruling.html" target="_blank" rel="noreferrer noopener">ignore existing case law</a> to curb access to abortion. In 2023, <a href="https://www.texastribune.org/2023/04/07/texas-abortion-drugs-fda-ruling/" target="_blank" rel="noreferrer noopener">U.S. District Judge Matthew Kacsmaryk</a>, who has deep ties to the anti-abortion movement, defied court precedent to suspend the approval of mifepristone. “The Court does not second-guess FDA’s decision-making lightly,” he wrote in his decision. “But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions.”</p>



<p>If Trump is able to appoint even more partisan judges like Kacsmaryk to the federal bench, it’s possible they would use the Comstock Act to criminalize folks sending or receiving mifepristone and misoprostol (or even <em>information</em> about it) through the mail. “If the Comstock [Act] were enforced, it would seriously impact the work we do,” says Sneha S. Nair, partnerships coordinator at <a href="https://womenfirstdigital.org/" target="_blank" rel="noreferrer noopener">Women First Digital</a>, a collection of online platforms that provides abortion and contraception information and services. “We rely on digital platforms to share [sexual and reproductive health] content worldwide, and restrictions like the Comstock [Act] could lead to significant censorship and suppression of vital information.”</p>



<p>But even the threat of Comstock being enforced is concerning for abortion advocates and providers. “What people believe the law to be is just as important, if not more so, than what the law actually is,” says Farah Diaz-Tello, senior counsel and legal director at <a href="https://ifwhenhow.org/" target="_blank" rel="noreferrer noopener">If/When/How</a>, a legal organization that aims to transform the policy landscape to make reproductive justice a reality. “When people have to second-guess what their options are and they just know that there’s a sort of vague and looming fear of criminalization … that is not a risk that everybody has the privilege to tolerate.”</p>



<p>For Black and Brown people, who have already <a href="https://www.npr.org/2022/08/03/1114181472/criminalization-of-pregnancy-has-already-been-happening-to-the-poor-and-women-of" target="_blank" rel="noreferrer noopener">borne the brunt of criminalization</a> for pregnancy outcomes, even the threat of an enforceable Comstock Law could be enough of a deterrent to prevent them from seeking necessary care.</p>



<h2><strong>Refusing to Be Silent</strong></h2>



<p>While Project 2025’s architects may be banking on the Comstock Act, they will have to contend with a network of providers and advocates refusing to put the genie back in the draconian bottle. For example, <a href="https://shoutyourabortion.com/" target="_blank" rel="noreferrer noopener">Shout Your Abortion</a>’s post-<em>Dobbs</em> campaign, “<a href="https://shoutyourabortion.com/materials/fuck-scotus/" target="_blank" rel="noreferrer noopener">Fuck SCOTUS, We’re Doing It Anyway</a>,” promotes information about and access to medication abortion online.</p>



<p>Similarly, the <a href="https://fourthievesvinegar.org/" target="_blank" rel="noreferrer noopener">Four Thieves Vinegar Collective</a>, a DIY medical collective, has literally turned <a href="https://www.vice.com/en/article/diy-collective-embeds-abortion-pill-onto-business-cards-distributes-them-at-hacker-conference/" target="_blank" rel="noreferrer noopener">an information card about medication abortion</a> <em>into</em> medication abortion. Embedded in the cards are three doses of misoprostol, which can be used on its own to induce an abortion, and since it’s a paper card, the pills are harder to detect.</p>



<p>Others believe the best way to combat Project 2025’s insidious ploy to use the Comstock Act as a backdoor abortion ban is to refuse to be cowed into silence about the revolutionary power of being able to terminate a pregnancy in your own home.</p>



<p>Today, the <a href="https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions" target="_blank" rel="noreferrer noopener">majority of abortions</a> in the U.S. are induced through medication, most often a combination of the drugs mifepristone and misoprostol. <a href="https://dev-wp.yesmagazine.org/issue/access/2024/05/23/the-new-autonomy-of-abortion" target="_blank" rel="noreferrer noopener">Telehealth for abortion care</a>, in which a provider virtually prescribes these drugs to patients, has become <a href="https://societyfp.org/wp-content/uploads/2024/05/WeCount-report-6-May-2024-Dec-2023-data_Final.pdf" target="_blank" rel="noreferrer noopener">increasingly popular</a>, even in states with abortion bans.</p>



<p>“The number of people served through telehealth has just grown exponentially since the pandemic,” says Elisa Wells, co-founder and co-director of <a href="https://www.plancpills.org/" target="_blank" rel="noreferrer noopener">Plan C</a>, which promotes access to medication abortion online. “[When people find out] that you can get an abortion by the mail, which is a really new idea … they think, ‘Wow, that’s amazing!’”</p>



<p>Research from the <a href="https://societyfp.org/wp-content/uploads/2024/05/WeCount-report-6-May-2024-Dec-2023-data_Final.pdf" target="_blank" rel="noreferrer noopener">Society for Family Planning’s WeCount project</a> revealed that in the second half of 2023, more than 40,000 people in states that restrict telehealth or ban abortion were able to receive medication abortion from providers in <a href="https://evidence.nejm.org/doi/full/10.1056/EVIDra2200280" target="_blank" rel="noreferrer noopener">states that have “shield” laws</a> that protect providers from being criminalized. Plan C’s website traffic has surged since <em>Dobbs</em>; Wells says they now receive approximately 2 million visitors annually.</p>



<p>There’s also the option of self-managing abortion with abortion pills. For people in states with severe restrictions or bans, self-managed medical abortion with pills has become an option for many who otherwise wouldn’t have access to abortion care. Plan C, for example, showcases many sites that prescribe and mail medication abortion to folks directly, including <a href="https://aidaccess.org/" target="_blank" rel="noreferrer noopener">Aid Access</a> and <a href="https://www.heyjane.com/" target="_blank" rel="noreferrer noopener">Hey Jane</a>.</p>



<p>There is a vast digital ecosystem of medication abortion information and services that abortion seekers can have mailed right to their door—unless Project 2025 goes into effect.</p>



<p>“What we are most concerned about is that people have access to accurate information about how to get the pills, how to use the pills, and the fact that in some states there might be legal risks associated with using the pills,” says Wells. “Every day is a risk assessment, and people can make good decisions about their lives. It’s not for me to say about somebody else’s life. What’s the best choice for you?”</p>

<p>This article originally appeared in <a href="https://www.yesmagazine.org">Yes! Magazine</a> at <a href="https://dev-wp.yesmagazine.org/social-justice/2024/10/09/election-medication-abortion-healthcare">https://dev-wp.yesmagazine.org/social-justice/2024/10/09/election-medication-abortion-healthcare</a>.</p><link href="https://dev-wp.yesmagazine.org/social-justice/2024/10/09/election-medication-abortion-healthcare" rel="canonical"/><p>Yes! Magazine is a nonprofit, independent media organization dedicated to telling stories of ... . Learn more at <a href="https://www.yesmagazine.org">Yes! Magazine</a></p><img id="republication-tracker-tool-source" src="https://dev-wp.yesmagazine.org/?republication-pixel=true&post=121987&ga4=G-74QJNNY44Z" style="width:1px;height:1px;">

Organizers Brace for Resurrection of “Zombie” Abortion Laws

Donald Trump didn’t deliver on many of his campaign promises as president, but he did achieve one of his administration’s stated goals: overturning Roe v. Wade. After appointing three of the five justices who ended the constitutional right to an abortion and unleashed a growing tragedy, Trump has bragged about his role in undoing nearly 50 years of reproductive health care precedent.

But as we face the prospect of another potential Trump presidency, the architects of Project 2025 have made it clear that overturning Roe was just the first in a multistep plan to eradicate access to safe abortion. Though the Republican Party removed a federal abortion ban from its official party platform, there’s something more sinister that’s been hiding in plain sight for 150 years.

The Comstock Act, signed into law in 1873, made it a federal offense to disseminate contraceptives, abortifacients, and information about either across state lines or through the mail. Named after Anthony Comstock, an anti-obscenity crusader who inspired the title of the biographical book The Man Who Hated Women, the Comstock Law had far-reaching tentacles. Even married couples who used contraception could be sentenced to up to one year in prison.

Public News Service · Election Day raises new fears over Comstock Act, reproductive rights

Over time, various challenges to the Comstock Act, including United States v. One Package in 1936, which made it possible for physicians to distribute contraception across state lines; Griswold v. Connecticut in 1964, which established the constitutional right to contraception; and, of course, Roe v. Wade in 1973, essentially made it unenforceable. However, the law was never repealed and has instead become a “zombie law,” a term used to describe laws still on the books that have been overruled by other legal cases. Take, for instance, Arizona’s 1864 abortion ban, a zombie law that became legally viable after the Supreme Court struck down Roe v. Wade. Though Arizona’s law was repealed in September, it still remained on the books long enough to instill fear in those seeking and providing abortions in the state.

Now, after the fall of Roe, Project 2025 plans to revive the zombie Comstock Act and make it workable. Since it’s already on the books, Congress isn’t required to pass the Comstock Act. Instead, a president and appointed judges can choose whether to enforce it. Project 2025 architects hope that, if given another term, Trump will do just that.

A Significant Threat to Abortion

Abortion bans are deeply unpopular in the U.S. Since Roe fell in June 2022, voters have supported abortion rights every single time the issue has been on the ballot, even in traditionally conservative states like Kansas, Montana, and Ohio. While a national abortion ban could threaten congressional seats for Republicans, it would also require control of both houses of Congress and the executive branch, a higher threshold than simply winning the presidency. So, it seems, the architects of Project 2025 have developed a workaround to meet their aims.

After Roe was overturned, President Joe Biden’s Department of Justice issued guidance about whether the Comstock Act could be used to criminalize someone who receives mifepristone and misoprostol through the United States Postal Service. “We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” the memorandum opinion states. “Federal law does not prohibit the use of mifepristone and misoprostol,” the memorandum continues. “Indeed, the U.S. Food and Drug Administration (‘FDA’) has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy.”

But under a Trump presidency, the DOJ would likely have a different view, especially since Project 2025 explicitly calls for the enforcement of the Comstock Act “against providers and distributors of [abortion] pills.”

Additionally, the spate of radical, far-right judges Trump appointed during his first term have already proven their willingness to ignore existing case law to curb access to abortion. In 2023, U.S. District Judge Matthew Kacsmaryk, who has deep ties to the anti-abortion movement, defied court precedent to suspend the approval of mifepristone. “The Court does not second-guess FDA’s decision-making lightly,” he wrote in his decision. “But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions.”

If Trump is able to appoint even more partisan judges like Kacsmaryk to the federal bench, it’s possible they would use the Comstock Act to criminalize folks sending or receiving mifepristone and misoprostol (or even information about it) through the mail. “If the Comstock [Act] were enforced, it would seriously impact the work we do,” says Sneha S. Nair, partnerships coordinator at Women First Digital, a collection of online platforms that provides abortion and contraception information and services. “We rely on digital platforms to share [sexual and reproductive health] content worldwide, and restrictions like the Comstock [Act] could lead to significant censorship and suppression of vital information.”

But even the threat of Comstock being enforced is concerning for abortion advocates and providers. “What people believe the law to be is just as important, if not more so, than what the law actually is,” says Farah Diaz-Tello, senior counsel and legal director at If/When/How, a legal organization that aims to transform the policy landscape to make reproductive justice a reality. “When people have to second-guess what their options are and they just know that there’s a sort of vague and looming fear of criminalization … that is not a risk that everybody has the privilege to tolerate.”

For Black and Brown people, who have already borne the brunt of criminalization for pregnancy outcomes, even the threat of an enforceable Comstock Law could be enough of a deterrent to prevent them from seeking necessary care.

Refusing to Be Silent

While Project 2025’s architects may be banking on the Comstock Act, they will have to contend with a network of providers and advocates refusing to put the genie back in the draconian bottle. For example, Shout Your Abortion’s post-Dobbs campaign, “Fuck SCOTUS, We’re Doing It Anyway,” promotes information about and access to medication abortion online.

Similarly, the Four Thieves Vinegar Collective, a DIY medical collective, has literally turned an information card about medication abortion into medication abortion. Embedded in the cards are three doses of misoprostol, which can be used on its own to induce an abortion, and since it’s a paper card, the pills are harder to detect.

Others believe the best way to combat Project 2025’s insidious ploy to use the Comstock Act as a backdoor abortion ban is to refuse to be cowed into silence about the revolutionary power of being able to terminate a pregnancy in your own home.

Today, the majority of abortions in the U.S. are induced through medication, most often a combination of the drugs mifepristone and misoprostol. Telehealth for abortion care, in which a provider virtually prescribes these drugs to patients, has become increasingly popular, even in states with abortion bans.

“The number of people served through telehealth has just grown exponentially since the pandemic,” says Elisa Wells, co-founder and co-director of Plan C, which promotes access to medication abortion online. “[When people find out] that you can get an abortion by the mail, which is a really new idea … they think, ‘Wow, that’s amazing!’”

Research from the Society for Family Planning’s WeCount project revealed that in the second half of 2023, more than 40,000 people in states that restrict telehealth or ban abortion were able to receive medication abortion from providers in states that have “shield” laws that protect providers from being criminalized. Plan C’s website traffic has surged since Dobbs; Wells says they now receive approximately 2 million visitors annually.

There’s also the option of self-managing abortion with abortion pills. For people in states with severe restrictions or bans, self-managed medical abortion with pills has become an option for many who otherwise wouldn’t have access to abortion care. Plan C, for example, showcases many sites that prescribe and mail medication abortion to folks directly, including Aid Access and Hey Jane.

There is a vast digital ecosystem of medication abortion information and services that abortion seekers can have mailed right to their door—unless Project 2025 goes into effect.

“What we are most concerned about is that people have access to accurate information about how to get the pills, how to use the pills, and the fact that in some states there might be legal risks associated with using the pills,” says Wells. “Every day is a risk assessment, and people can make good decisions about their lives. It’s not for me to say about somebody else’s life. What’s the best choice for you?”