The Next Republican President Has a Plan to Ban Abortion Nationwide Without Congress

When voters directly consider the abortion issue, it’s bad news for Republicans, who have lost ballot measure after ballot measure upholding reproductive rights since Roe v. Wade was struck down last year. And to hear GOP primary candidates tell it, the next president won’t be willing or able to do much about abortion, a transparent effort to sidestep a losing issue. Donald Trump, the obvious front-runner, has occasionally indulged in magical thinking, suggesting that he can conjure up a national ban that Americans on either side of the issue will love. More realistically, though, he has attempted to neutralize the issue by doing things like calling a six-week ban on abortion “terrible,” while at the same time, in a wink and a nod to evangelical voters, running ads bragging about choosing the justices who overturned Roe. Former South Carolina Gov. Nikki Haley, another GOP hopeful, has stressed that a national ban is impossible: Congress will never pass one in the near future, and abortion opponents needlessly alienate swing voters by discussing one. The message from these candidates is clear: A Republican president won’t do much on abortion.

That’s not what conservative activists think. At least that’s the message sent by Project 2025, the policy playbook crafted by the Heritage Foundation and more than 70 other conservative groups and distributed to each GOP primary candidate. Heritage does not take issue with Haley’s skepticism about congressional willingness to pass a ban. Nor does it indulge in Trump’s fantasy of an Art of the Deal–style consensus magicked up after 50 years of bitter struggle. Instead, Heritage argues, the United States already has a national ban, and all that is required is a conservative president willing to enforce it. This approach will offer any future GOP president a quick solution to the party’s political conundrum: Campaign on the status quo, but try to enforce the ghost national ban once in office.

The story behind Heritage’s claim begins in the 19^th century, with the passage of a sexual purity law that was interpreted to make it a crime to mail or receive items intended, designed, or adapted for abortion. Exactly what the Comstock Act said or meant, not least when it came to abortion, was unclear at the time it passed. States were then, for the first time, criminalizing abortion early in pregnancy, with life exceptions. Members of Congress seemed unsure whether the act covered “lawful” or medically indicated abortion.

In the years since, courts have interpreted the Comstock Act not as a flat ban on all abortions. By the 1930s, courts were interpreting the law as having a sort of implied health exception that applied to physicians and those transacting with them. No one has mentioned the statute in the context of abortion for decades.

None of that matters to the groups that developed Project 2025. What counts is the prospect of exercising power. Heritage argues that federal law prohibits the mailing of any item “advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The only obstacle in enforcing Comstock, according to Heritage, was Roe. Now that the right to choose is gone, Heritage argues, a GOP administration can announce its intention to enforce the Comstock Act on Day 1. The next step could be prosecutions in federal court of anyone, anywhere in the country, who is involved in receiving or mailing an item knowingly for abortion.

Of course, there are possible hurdles in the path of the plan spelled out in Project 2025. Any effort to enforce the Comstock Act—rather than simply frightening drug companies and abortion providers into compliance—will result in litigation. Those defendants will insist that Heritage’s interpretation is all wrong, contradicting precedent and pretending to interpret the plain meaning of a text that is anything but straightforward. They may even say that Heritage’s interpretation of Comstock is unconstitutional.

That will force the Supreme Court to get involved, but there is no guarantee that the justices will be willing to go as far as Heritage would like. The “plain meaning” conservatives now associate with the Comstock Act is not evident to many legal experts—and was not clear to the framers of the statute itself. Besides, this reading of the text is extraordinarily broad, much more sweeping than anything introduced to date in a state abortion ban. There are no life or health exceptions in the text of the law. It applies seemingly to women and other abortion seekers—indeed, to anyone who receives abortion-related items in the mail. It doesn’t define abortion—opening the door to views that some contraceptives have abortifacient properties—and isn’t limited to it either, sweeping in speech about abortion and other items deemed to be “indecent.” And it arguably applies to surgical abortions, given that clinics and hospitals all rely on items put in the mail.

Voters may wonder if Trump wouldn’t resurrect Comstock, or if the Supreme Court will agree with Heritage’s interpretation, or if a Trump Department of Justice will prioritize an attack on abortion. Progressives may be skeptical about the importance of a second Biden term when the president has sometimes avoided even saying the word abortion and when the prospect of federal abortion protections is far off. What is clear is that the architects of Project 2025 are confident that a second Trump term could be just as transformative for abortion rights as the first one was. Courtesy of Anthony Comstock, and regardless of whether Congress lifts a finger, an abortion ban is on the ballot—whether or not voters want one.