Introduction

The availability of medication abortion through telemedicine has been a lifeline for abortion access following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned longstanding constitutional protections for abortion. As of 2023, medication abortion made up more than 60 percent of abortions in the country and the majority of abortions in states with bans.  

Anti-abortion extremists now have a new target in their quest to ban abortion nationwide.  

Under the Trump administration, these extremists have influence at the highest levels of the government. That influence could impact access to medication abortion across the country—especially if they try to weaponize a set of little-known anti-vice laws from 1873. 

Those laws, known collectively as the Comstock Act, prohibit the transport of “obscene” materials and anything used to provide unlawful abortion care through the mail. Decades of court opinions beginning as far back as the early 1900s, as well as later administrative and congressional action, establish that Comstock does not prohibit the mailing of medication and supplies used for lawful health care. This was reaffirmed in a 2022 legal opinion from the Department of Justice’s (DOJ) Office of Legal Counsel (OLC).    

But extremists want to misuse this law to ban the mailing of all abortion pills, even where abortion is legal. So in order to apply Comstock’s restrictions nationwide, they have also called for rescinding the 2022 opinion.  

Extremist appointees

New Justice Department appointments put Comstock enforcement in reach

Now, President Trump is stacking the OLC with anti-abortion extremists, positioning them to revoke and replace the 2022 opinion. This could in effect allow the Trump administration to weaponize Comstock to restrict access to medication abortion everywhere in the country. 

Two recent high-level OLC appointees have documented histories of extreme anti-abortion views: 

• T. Elliot Gaiser was confirmed by the Senate in July as the Assistant Attorney General for OLC, meaning that he will lead the office and oversee the development of its legal opinions. Gaiser has a long record of spreading anti-abortion misinformation:  
  • Wrote an article supporting President Trump’s reelection in 2020 in which he called abortion a “moral evil,” referred to Roe v. Wade as an “atrocity,” and falsely accused pro-choice politicians of wanting to punish providers who don’t provide abortions.  
  • As far back as his time in college, Gaiser wrote an op-ed supporting the idea of a “constitutional amendment banning all abortion at the federal level.” 

• Josh Craddock was appointed in July by President Trump as Deputy Assistant Attorney General for OLC, where he will serve as a key legal advisor to Gaiser. Because his role did not have to be confirmed by the Senate, the American people did not get a say in whether he got the job. Craddock is one of the country’s most extreme anti-abortion advocates, and his legal expertise and passion are squarely focused on banning all abortion:  
  • He is a proponent of “fetal personhood”, the legal theory that embryos are entitled to full legal rights from the moment of conception. If fetal personhood were recognized under the law, abortion would be effectively banned nationwide and any pregnant person who got an abortion would be vulnerable to prosecution for homicide.  
  • Craddock has also been an outspoken advocate for enforcing Comstock, calling it “one of the most promising ways” to restrict access to abortion nationwide. In January, Craddock signed onto a letter to DOJ asking that OLC revoke the 2022 OLC opinion and enforce Comstock to stop “mail-order abortion.”   

Although the call for weaponizing Comstock started in fringe anti-abortion circles, it has been adopted by more mainstream conservative groups. Comstock enforcement is one of the key strategies for restricting abortion access laid out in Project 2025, the Heritage Foundation-led blueprint for a second Trump term. President Trump has already used his first eight months in office to implement many of those Project 2025 policies—and he’s one step closer to doing the same on Comstock. 

Devastating impact

Comstock weaponization would devastate care across the country 

Because medication abortion makes up the majority of abortion in the United States, extremists have focused on weaponizing Comstock against medication abortion. This would restrict care nationwide, but particularly for people already struggling to access health services, like those with low incomes or in rural communities.  

But if the Trump administration is willing to intentionally misuse this zombie law against medication abortion, there is nothing preventing it from going a step further and trying to prevent the mailing of anything used in abortion care, like medication, surgical instruments, or other medical equipment. This would have a devastating impact—not only restricting legal abortion everywhere, but also making all obstetrics and other reproductive health care that much more difficult to access.  

The Center for Reproductive Rights is continuing to shine a light on the anti-reproductive rights records of the people President Trump is placing in key positions of power throughout the federal government. To find out more, please visit Repro Red Flags: Agency Watch. 

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