Mary Ziegler and Reva Siegel write:

The Supreme Court rejected a challenge to abortion drugs just a few months ago, but anti-abortion forces are already back with a new lawsuit. The suit would have a devastating impact on abortion rights across the country. But even if it doesn’t succeed, it’s part of a strategy that former President Donald Trump could use to ban abortion nationwide if he wins the White House — even without action from Congress.

Trump has said he would veto a federal abortion ban if it landed on his desk, but the centerpiece of the latest push targeting abortion rights would not require passage of a new law. Instead, it’s the reinvention of one already on the books: the Comstock Act, a 19th-century obscenity law that conservatives claim — with little support in the law’s history or text — is a de facto, no-exceptions ban on mailing, receiving or using the internet to order any abortion-related drug or paraphernalia. On conservatives’ interpretation, the law would make it illegal not just for patients to receive abortion medication through the mail but for doctors to perform abortions in hospitals, because they’d be unable to receive necessary medical equipment and supplies.

Widespread support exists on the right to “revive” Comstock. Virtually every major anti-abortion organization has embraced a Comstock strategy; the Federalist Society recently publicized it; and it’s included in Project 2025, the policy blueprint for a potential second Trump administration that became a political liability for Trump. Sen. JD Vance, before he became Trump’s running mate and sought to veer to the center, also called for the Justice Department to enforce the Comstock Act.

Arguments about Comstock also figured centrally in the recent challenge to the FDA’s approval of mifepristone, a drug used in a majority of abortions in the United States. In that case, Food and Drug Administration v. Alliance for Hippocratic Medicine, the Supreme Court rebuffed abortion opponents in June by ruling the plaintiffs didn’t suffer enough of an injury to confer standing to sue.

Now, three conservative state attorneys general are back with a new Comstock-focused plan to undermine access to mifepristone. The new lawsuit may have as many problems as the last one, but it’s a powerful reminder that conservatives are deadly serious about using the Comstock Act to advance their anti-abortion agenda. The plaintiffs are hoping that the Supreme Court’s conservative supermajority will embrace this reading of Comstock no matter who is in the White House. But even if the suit fails, a Trump Department of Justice could enforce this reading of Comstock — against patients or doctors in any state. [Continue reading…]