Blanche Suggests DOJ Could Use Victorian-Era Law to Ban Mailing Abortion Pills

Reproductive rights activists are alarmed over a pledge by acting Attorney General Todd Blanche to institute nationwide abortion restrictions. Blanche, whose confirmation for attorney general is currently before the Senate, made the remarks in a private call with anti-abortion activists that was later posted online. According to the audio recording, Blanche said the Trump administration is pursuing policies “so that the Dobbs decision becomes permanent in every single state,” referring to the 2022 Supreme Court ruling that ended the constitutional right to abortion and left the matter to individual states.

Amy Littlefield, The Nation’s abortion access correspondent, says the administration is likely to focus on limiting abortion pills delivered by mail, perhaps by invoking the 1873 Comstock Act, which banned the mailing of “lewd” and “indecent” materials through the mail. Littlefield calls it a “zombie law from the Victorian era” that reflects the frustration of the anti-abortion movement’s inability to reduce abortions despite victories at the Supreme Court.

“Abortion bans do not stop abortion. What they do is they kill and harm the people who need them,” she says.

Littlefield is the author of Killers of Roe: My Investigation Into the Mysterious Death of Abortion Rights.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Acting Attorney General Todd Blanche privately assured anti-abortion activists that the Trump administration is working to, quote, “make Dobbs permanent,” unquote, nationwide. He made the pledge on a call hosted by the White House Faith Office with the religious group Intercessors for America, which posted a recording of the call online. Blanche acknowledged the Trump administration’s push to restrict abortion is moving slower than supporters want, but promised it was committed to stopping abortion across the country. On the call, Blanche also pledged to crack down on abortion pills.

ACTING ATTORNEY GENERAL TODD BLANCHE: Rest assured that — that we’re working, you know, hand in hand with — with HHS and the FDA and — and the White House and President Trump’s team to get permanent solutions, so that — so that the Dobbs decision becomes permanent in every single state.

AMY GOODMAN: In response, Democratic Senator Tina Smith of Minnesota said, quote, “Todd Blanche made clear in these secret calls with anti-choice activists that he wants to resurrect the Comstock Act — an antiquated anti-vice law from before women had the right to vote — to ban sending medication abortion in the mail. Republicans will likely do what they always do and confirm Blanche as Attorney General despite all of this, and once again, women across America will pay the price,” the senator said.

For more, we go to Boston, where we’re joined by Amy Littlefield, The Nation’s abortion access correspondent. Her recent book is titled Killers of Roe: My Investigation into the Mysterious Death of Abortion Rights.

Amy, welcome back to Democracy Now! Can you talk about the significance of this private, secret — and unclear what language to use — call that the Acting Attorney General Todd Blanche had with anti-abortion activists and what exactly he promised?

AMY LITTLEFIELD: Right. I mean, it’s a little hard to parse, Amy, exactly what he promised, because for someone who wants to be the chief law enforcement official in the United States, his words don’t make a lot of legal sense. He talked about making the Dobbs decision permanent in every state. Well, Dobbs was a Supreme Court ruling that said states could make their own abortion policies. And it’s not as if anti-abortion activists, like the ones he was speaking to on the call, were clamoring to make Dobbs “permanent.” That’s not the issue. They’re angry because Dobbs has not met their goal of ending all abortions across this country.

And so, I don’t know if this was a private attempt by Blanche to try to placate those activists, even though in public he has not made this type of commitment, although he has, you know, made some allusions to potentially reviewing options to enforce the Comstock Act in his confirmation hearing. So, fortunately, the intrepid reporters at Politico followed up with him and clarified with the Justice Department that he is talking about going after abortion pills by mail, which, of course, have been a lifeline for abortion access in the dozen or more states where abortion is banned.

JUAN GONZÁLEZ: And, Amy, what specifically is the Comstock Act, and what does it cover?

AMY LITTLEFIELD: Right. So, there are two different avenues, basically, that could be used here, if Blanche is confirmed, to go after abortion pills. One of them, and because he alluded to the FDA and HHS, that suggests perhaps he’s going to use the FDA’s ongoing purported safety review of mifepristone, the first drug that’s used in a medication abortion protocol, to try to go after mifepristone by mail under supposed safety concerns, even though this is a drug that’s been on the market for more than 25 years, has been studied more than a hundred times.

The other option, the nuclear option, is the Comstock Act. This is a nationwide — could serve — if abortion opponents are right in their reading of it, if the courts agree with their reading of it, could essentially be revived as a de facto nationwide abortion ban that would apply even in blue states. And that’s because it banned the mailing of any “lewd, lascivious, or filthy” items. Now, I’m quoting from the law there, OK? And if this sounds like a law that dates back to the Ulysses S. Grant administration, that’s because it is. This was brought forward by sexual purity crusaders who were angry about, you know, racy medical textbooks and also drugs and devices being used for contraception and abortion. So, that’s the context, the historical context, of this law, right?

It had not been used in litigation for almost a century when anti-abortion activists started trying to revive it in the wake of the Dobbs decision, because they understood that a zombie law that had been on the books since 1873 was their best shot at banning abortion across the country. So, what the Comstock Act could be used to do is to try to stop the mailing of abortion drugs and devices. Now, if that were broadly interpreted, it could apply to latex gloves, that might be used in an abortion, or syringes. You know, it could be broadly interpreted to shut down not just mail-order abortions, but also clinic-based care, depending on how it’s read. And it’s also important to note that the, you know, anti-vice crusaders who were — who brought about this law originally used it to also go after information and speech, right? So, the implications of this zombie law from the Victorian era are chilling indeed.

AMY GOODMAN: Amy, the Senate has voted 51 to 44 to confirm Dr. Erica Schwartz to head the CDC, the Centers for Disease Control and Prevention. During her confirmation hearing, Schwartz came under fire for saying, quote, “Abortion surveillance is absolutely critical.” This is what she said.

DR. ERICA SCHWARTZ: Abortion surveillance is absolutely a critical component of what the CDC is currently doing. … I also want to also make sure that certain states are not conflating emergency services and hiding abortions in that emergency services case definition. We need to make sure we’re pulling out true abortions and making sure that we’re really having clear case definitions regarding abortions, so the data is actually accurate.

AMY GOODMAN: So, that’s Dr. Erica Schwartz, who’s been confirmed as head of the CDC. Can you explain abortion surveillance, Amy Littlefield?

AMY LITTLEFIELD: I mean, on the one hand, Amy, I want to make a joke about this, because “find the hidden abortion” sounds like a terrible board game that JD Vance makes his kids play on a Friday night. On the other hand, I think we have to take this very seriously, because if there’s one lesson from the second Trump administration, it’s that things that sound joke-worthy can very quickly become public policy and rule of law.

And so, what she’s talking about here is weaponizing CDC data about the number of abortions that take place in the country every year, data that states report to the CDC, and somehow combing that data to look for hidden abortions. Now, what she’s talking about here, Amy, are miscarriages. She’s talking about emergency situations where people show up to the emergency room bleeding, maybe suffering from a fever — they need emergency care.

And what’s so egregious about her words here is that we know that people are dying precisely because of the fear of the type of surveillance she’s talking about invoking. Right? We know that doctors are delaying care for people suffering miscarriages. We know they’re sending them home from hospitals. And we know that people like Porsha Ngumezi, people like Nevaeh Crain have died in states like Texas as a result. Right? So, to invoke this fear will have a chilling effect.

And it just comes back to really the only law that matters when it comes to abortion access, Amy, across time and place, and it’s one that I talk about in my book, Killers of Roe. Abortion bans do not stop abortion. We’re seeing that now. The number of abortions has gone up since Dobbs because of abortion pills by mail. Right? Abortion bans do not stop abortion. What they do is they kill and harm the people who need them.

JUAN GONZÁLEZ: And, Amy, you mentioned that abortions have gone up. You were part of a recent podcast, “The Post-Roe Surprise: More Abortions.” Could you expound a little bit about that in the last minute we have left?

AMY LITTLEFIELD: So, this most recent episode of Reveal, we looked at the post-Roe surprise, which was more abortions. The number of abortions went up. And we look at three women who are integral to this landscape.

One is Dr. Angel Foster, who runs a telemedicine service called The MAP that’s shipping 6,000 medication abortion kits per month. And they are serving states where abortion is banned, operating under laws that protect clinicians like her in states like Massachusetts.

Then we look at Kristan Hawkins, the president of Students for Life, who I’ve been following around the country for the last several months — it’s been a wild ride — and her efforts to pressure the Justice Department to revive the Comstock Act.

And finally, we look at Lena, an abortion pill courier. Lena flies overseas, fills up her suitcase with enough medication abortion to undermine any state’s abortion ban, flies back into the country, gets in her car with all these pills, turns up the music, listens to Taylor Swift, drives away, heads back home to her cat. And nobody has ever caught her. And this is going completely undetected, these sophisticated networks of circulating abortion pills person to person. No matter what the FDA tries to do with mifepristone, no matter what the Trump administration tries to do, whether it’s the Comstock Act or not, people like Lena are out there serving other people in their community, friend to friend. These are pills that can be pressed into the palm of your hand. And the federal government has only dystopian options at its disposal to try to stop these drugs. And we may see those dystopian options and harms coming as a result. But the bottom line here is that because of people like Lena, they are not going to stop abortions in this country. As we know, these abortion bans only kill and harm the people who need abortions.

AMY GOODMAN: Amy Littlefield, The Nation’s abortion access correspondent, a journalist who focuses on reproductive rights, healthcare and religion. Her new book, Killers of Roe: My Investigation into the Mysterious Death of Abortion Rights. Amy recently contributed to the new episode for Reveal, headlined “The Post-Roe Surprise: More Abortions.”

Coming up, we speak with the state Senator Cindy Holscher of Kansas, now the Democratic nominee for governor. She’s pushing for a statewide moratorium on new data centers. Then, Dr. El-Sayed, and we’ll talk about a play in New York about the 1979 massacre of protesters in Greensboro, North Carolina, a massacre committed by the Ku Klux Klan. Stay with us.

[break]

AMY GOODMAN: “Mandela” from César Alvarez’s musical The Potluck. We’ll be joined by César later in the broadcast.