Project 2025 seeks to resurrect a 151-yr-old law to subordinate women

when conservatives launched their colossal attack on constitutional rights to abortion it marked the first phase of a broader objective to end reproductive freedom in this country entirely their latest efforts to revive an obscenity law that is more than 150 years old makes clear their endgame to pass a nationwide abortion ban if resurrected under the next Republican presidential term the 18 73 Comstock act would go even further than the do Supreme Court decision that overturned Ro v Wade not content with just restricting abortion access in many states this effort is a Brazen attempt to reign in states that continue to protect women's reproductive Freedom now it's worth noting that project 2025 distorts the original intent of the Comstock act which has never been used to prosecute abortion care but I'm going to get into that shortly the Christian legal group that filed the Dos lawsuit the alliance defending freedom is a prominent advisor to project 2025 which explicitly cites its goal of using the Comstock act to go after medication abortion in chapter 17 which focuses on the Department of Justice project 2025 directs the Department of Justice to enforce the Comstock act and I'm here on page 562 it says following uh following the Supreme Court decision in DOS there is 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 and quote notably this section is authored by Jean Hamilton a lawyer and former justice department staffer under the Trump Administration that's relevant because Donald Trump keeps on saying he's got nothing to do with project 2025 now you might wonder why these far-right extremists are targeting medication abortion which involves taking pills to end a pregnancy in the privacy of one's home the abortion pill Miffy prone is only effective during the early stages of pregnancy up to around 10 weeks meaning it cannot be used for second or third trimester pregnancies when Republicans push the narrative that women are aborting fully developed babies that is simply a lie according to the healthcare nonprofit kff late term abortions are exceedingly rare representing just 1% of all abortions in the United States and typically only occur in extreme circumstances in reality the most common form of abortion care in the United States is not surgical it's medication and this method has predictably surged since the passage of near tootal abortion bans in a handful of States following the do's ruling its availability has helped to prevent an even worse reproductive Health crisis by reducing weight times in Blue State states that have become overwhelmed by the influx of outof State patients coming in to seek abortion Care Now by targeting this common form of abortion conservatives are effectively imposing a de facto National Abortion ban attacking the last remaining safe and legal option in the many states that have outlawed surgical abortions if the Comstock Act is allowed to be enforced in this way the Christian conservative movement would cement its control over women's reproductive Health choices over a woman's most in imate decisions concerning her health and her body it's also important to understand the timing of the effort to revive this dormant law they're pushing it at a time when abortion banss are widely unpopular even amongst most Republican voters in fact according to an apnc Pole from this past June a solid majority of Americans 79% oppose Congress passing Nationwide banss on legal abortion and when you break that number down along partisan lines 64% of Republicans oppose it as do 91% of Democrats but by relying on The Comstock act Republicans can bypass the need to go through Congress their strategy is especially egregious considering that the comto Act was never intended to apply to Legal abortions and has never been interpreted by the courts or by Congress to be used as a blanket criminalization of abortion access in fact the comto ACT reads quote every obscene lewd lascivious indecent filthy or vile AR article matter thing device or substance is declared to be non- mailable matter and once precluded the mailing of items that were quote intended for the prevention or conception or procuring of an abortion now prior to row this puritanical law was historically understood as applying only to unlawful abortions and several judicial rulings pointed to the lack of any Congressional interpretation on this particular issue there are in fact many legal uses of medical abortion including to prot protect the health of the mother which means it's nearly impossible to determine the intent of someone who is mailing or prescribing abortion pills therefore making it difficult to prosecute which is why the law has never been actually used to prosecute medication abortion or the mailing of abortion related materials Ro v Wade would later make this Law's abortion provision entirely obsolete by establishing a constitutional right to abortion but under this project 2025 violators of the comto ACT would face up to 5 years in prison for a first time offense and up to 10 years for a second offense furthermore a wide range of people and entities could be targeted from Physicians and pharmacists to the US Postal Service to FedEx because project 2025 urges the justice department to go after quote providers and Distributors of medication abortion a weaponized doj could also interpret the Relic law more broadly potentially criminalizing not just medication abortion but the materials used in surgical abortions so ultimately the plan is simple weaponize the Department of Justice to advance an extremist agenda that is not supported by the vast majority of Americans when speaking to the New York Times Jonathan Mitchell a key architect of project 2025 openly admitted that bypassing Congress and therefore the Democratic process is essentially their goal saying quote we don't need a federal ban when we have Comstock on the books The Quiet part has been said out loud before the break I told you about project 202's goal of using a long dormant obscenity law The Comstock act from 1873 to pass a deao national ban on legal abortion a move that a huge majority of Americans already oppose for more on this I'm joined by Leah Litman she's a professor at the University of Michigan law school co-founder of women also no law and co-host of the strict scrutiny podcast Leah great to see you thank you for uh being here it's a it's a lot of story to tell but it was really important to tell it because people have to understand that there is a remarkably effective back door through this comto act that's still on the books that can be used because most abortions in this country are now medication abortions it's extremely significant and I just want to underscore again that they would effectively have a mechanism to try to enforce a nationwide abortion van without Congress having to pass one that is so long as there is a Republican president in the White House and a republican attorney general they would try to enforce this law from 1873 to go after Distributors of medication abortion providers of medication abortion and it's really terrifying because you think about how anti-democratic and undemocratic that would be obviously there isn't National support for Congress to pass a nationwide abortion ban in every state where abortion has been on the ballot the voters have tried to protect Reproductive Rights and Justice and they want to revive this law from 1873 that was passed when women couldn't even participate in the electoral process and certainly weren't represented in Congress and that's the law that they want to bring back to subordinate women's bodily autonomy to their PR vision of gender roles how was I I mean I think we need to understand why the comto ACT is still on the books uh given that there were opportunities to get rid of it all these years or do something about it but how was the comto ACT understood prior to row v Wade and why has it never been used to do this to prosecute abortion care so before um row was overruled you know the comto Act was obviously couldn't be enforced because the court had held that abortion was a constitutionally protected right but even without Row the interpretation of the Comstock act basically said it's only a legal to mail medication abortion or mail you know abortions if you are mailing them in order to obtain an illegal abortion that is it's not you know prohibited to mail medication abortion to someone in a state where abortion is legal um or abortion wouldn't be prohibited by federal law and so this is an exceptionally aggressive interpretation of the comto act and part of the reason why the Comstock Act was never repealed is because courts gave it this very limited construction and the anti-abortion movement wasn't attempting to go after you know the doctors who were trying to provide Women Health Care with the comto Act and the comto Act was used actually to prosecute people who were critical of the comto act the law actually had as its origin um an effort to prosecute you know one of the leading advocates for women's ability to vote and they decided to pass an obscenity law to kind of keep women from speaking and keep them out of the political process ensure that they couldn't have autonomy over their bodies but again even after that the law was never really used as a federal abortion ban and so you have the modern-day project 2025 and Republican supporters wanting to go even further than the Victorian era you know Purity law of the 1870s So Pro 2025 aims to have the Department of Justice and for this is in the Department of Justice section abortions all over this document but this one's in the in the in the Department of Justice section it aims to have the Department of Justice enforce the Comstock act against providers and Distributors of abortion pills and that could be everybody uh anybody who who has any role in the distribution of this so tell me how that reshapes the legal landscape for Reproductive Rights in states where abortion remains legal in the michigans and the uh New Yorks and the California and the Massachusetts of the country it's really terrifying because what it would do is it would allow the federal government and the Federal Criminal apparatus to basically go around snooping to see whether there are individuals or doctors in states where abortion is perfectly legal who are accessing medication abortion um that possibility is really terrifying because of course you know this would again amount to a federal abortion ban and it would apply even in states that recently Michigan adopted State constitutional amendments to protect and Safeguard the right to reproductive freedom and so you would essentially be having this anti-democratic you know minority rule project evade the Democratic processes in multiple ways in order to suppress women's bodly autonomy and their reproductive freedom and health care in states where that is supposed to be legal Leah thank you so much for making this clear Leah Litman is a professor at the University of Michigan law school co-founder of women also no law and the co-host of the strict scrutiny podcast