Vance urged DOJ to enforce Comstock Act, crack down on abortion pills

Sen. J.D. Vance (R-Ohio), newly tapped as the GOP vice-presidential nominee, last year joined an effort to enforce the Comstock Act, the 151-year-old federal law that has become a lightning rod in the nation’s abortion debate.

The Comstock Act, which bans the mailing of abortion-related materials, has not been invoked for that purpose in about a century. The Biden administration maintains that its provisions are outdated today. But some Republicans have attempted to resurrect the law to limit or effectively ban abortion nationwide, a position that Vance and other lawmakers conveyed to Attorney General Merrick Garland in a January 2023 letter.

“We demand that you act swiftly and in accordance with the law, shut down all mail-order abortion operations,” Vance and about 40 fellow Republican lawmakers wrote. The Republicans called on the Justice Department to potentially prosecute physicians, pharmacists and others “who break the Federal mail-order abortion laws,” citing additional federal laws that apply to criminal conspiracy and money laundering.

Vance did not respond Wednesday to a request for comment. The Ohio senator, whose staunch antiabortion stance has won him plaudits from conservatives and drawn sharp criticism from Democrats, has recently signaled he may be relaxing his position. Vance told NBC News this month that he supported access to abortion pills, citing the Supreme Court’s recent ruling that mifepristone — the drug used in most abortions — could remain on the market.

GOP presidential candidate Donald Trump, who announced Vance as his running mate Monday, has declined to comment on the Comstock Act.

Democrats said they remain worried about Vance’s antiabortion efforts, particularly given that he could shape the next White House’s policies. Most abortions are performed with medication sent through the mail — a delivery system that could be slowed or halted if the Justice Department changes its position on the Comstock Act.

“The threat that a future Trump-Vance administration will misuse Comstock to ban abortion nationwide is now a five-alarm fire,” said Sen. Tina Smith (D-Minn.), who is leading an effort to repeal the Comstock Act’s abortion provisions in Congress.

The White House has also drawn a contrast between Biden’s stance on Comstock and his GOP rivals.

“While Republican elected officials would like to resuscitate a law from 1873 to shut down access to mifepristone — which the FDA first approved as safe and effective more than 20 years ago — the Biden-Harris Administration has made clear that the Comstock Act is not a barrier to the shipment or transport of medication abortion,” Jennifer Klein, director of the White House’s Gender Policy Council, said in a statement.

Antiabortion advocates first moved to revive the Comstock Act after Roe v. Wade was overturned two years ago — arguing that without the constitutional right to abortion, the long-dormant act now makes it illegal for anyone to mail abortion pills, even in states where abortion remains legal. The law has been referenced by “Project 2025,” the conservative-backed alliance that has created a policy road map for a future Republican president. The Project 2025 document was released after the letter from Vance and other GOP senators was sent. According to Project 2025’s blueprint, the Justice Department should “enforce federal law” against providers and distributors of abortion pills.

Roger Severino, vice president of domestic policy at the Heritage Foundation, a conservative think tank that helped organize Project 2025, praised Vance’s positions on abortion and said the letter aligns with their proposals.

The letter “will likely be demagogued by the left to falsely claim it will lead to a national ban on access to chemical abortion pills,” Severino said.

Supreme Court Justices Samuel A. Alito Jr. and Clarence Thomas also focused on Comstock during oral arguments in the challenge to mifepristone this year.

“It’s not some obscure subsection of a complicated obscure law,” Alito said in oral arguments in March, referring to Comstock as a “prominent provision.”

It is not clear if Trump would attempt to enforce the Comstock Act if elected president or how his administration would interpret the law. Legal scholars have said a broad interpretation of Comstock could include a ban on mailing of all medications and equipment used for abortions, including in medical clinics — effectively banning abortion nationwide.

Trump has spent months dodging questions about Comstock, part of his effort to navigate abortion politics that have proved difficult for Republicans. The party has been defeated in every statewide referendum on abortion issues since the fall of Roe, and Trump has said Republicans should back away from a national abortion ban and leave the issue to the states.

Asked about the Comstock Act in an April interview by Time magazine, Trump said it was a “very important issue” and promised to issue a “big statement” within the next two weeks.

Trump has yet to issue that statement on Comstock.

Democrats in Congress have dismissed Trump and Vance’s recent statements on abortion as political posturing, pointing to their prior records. As president between 2017 and 2021, Trump nominated three Supreme Court justices who ruled to overturn Roe, reinstated restrictions on funding of abortion overseas and took other steps that led activists to hail him as the most antiabortion president in history.

Vance, during his run for the Ohio Senate seat, said he was “totally fine” with a “minimum national standard” on abortion restrictions but did not specify at what point abortions should be banned. Asked in 2021 whether abortion laws should include exceptions for rape and incest, he said that “two wrongs don’t make a right.”

Vance later echoed Trump’s call for some exceptions, saying it is “not about moral legitimacy but political reality,” after he lost in a fight over a ballot measure to enshrine reproductive rights into Ohio’s state constitution last year.

“JD Vance and Donald Trump are trying to ‘soften’ their position on abortion. Don’t believe it,” said Smith, the Minnesota Democrat. “When they tell us they want to ban abortion, they mean it.”