The news out of Florida this week might have seemed positive at first glance: Yes, the state’s ultraconservative Supreme Court gave the green light on allowing the state’s voters to decide whether the right to abortion should be enshrined in the Florida Constitution. Democrats were heartened by this development, as statewide referenda on the issue have (to date) passed overwhelmingly, even in Republican-dominated states such as Kansas and Ohio.
The success of these measures in GOP-led states shows that a substantial segment of the Republican electorate recognizes that it doesn’t want politicians meddling in their reproductive decisions. And energizing the pro-choice vote in Florida should benefit Democratic opportunities in the state, including but not limited to the chance to unseat the odious Sen. Rick Scott.
But that piece of relatively good news was overshadowed by what accompanied it. The same Florida court allowed the six-week abortion ban previously passed by Gov. Ron DeSantis and the state’s Republican-dominated Legislature to go into effect next month. This law would supplant the state’s current 15-week threshold with a far harsher deadline, disallowing the termination of almost any pregnancy before many people are even aware they are pregnant.
As Caroline Kitchener, writing for The Washington Post reports, “The new law will affect more women seeking abortions in the first trimester than any other single abortion ban to date, upending an already precarious new landscape for abortion access that has developed in the wake of the June 2022 U.S. Supreme Court ruling.” Worse, six of the seven justices on the court strongly implied they favored granting “personhood rights” to unborn fetuses, which would likely foreclose any efforts in Florida to legalize abortion in the future.
But the impact of this radically punitive Florida law reverberates far beyond the state’s geographic boundaries.
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As Kitchener points out, many people in states adjacent to or near Florida (such as Alabama, Mississippi, Louisiana, and Georgia) who wanted or needed abortions had regarded Florida as a haven of sorts, with fewer restrictions (such as mandatory waiting periods) and allowance of the procedure later in pregnancy. As of May 1, that will no longer be the case. As Kitchener observes, in its decision to uphold Florida’s new law, “[T]he court has cut off nearly all abortion access across the South, where all other states have either implemented similar bans or outlawed abortion entirely since Roe v. Wade was overturned.”
The reality is that short of traveling vast distances to Virginia or North Carolina (an option that’s not feasible for many), there is only one safe recourse now available to many of those who live in these Southern states and wish to terminate their pregnancies. That recourse is the use of abortion-inducing drugs such as mifepristone, which can still be obtained through the mail.
But even that option would be eliminated should Donald Trump succeed in his bid to regain the presidency. With a single executive order, Trump could effectively halt the distribution of mifepristone and any other medicine capable of inducing an abortion. That is exactly what conservative organizations such as the Heritage Foundation have urged Trump to do should he regain the presidency in 2024, and every indication suggests that is exactly what he will do.
The legal justification for such an action by Trump is the Comstock Act, “an 1873 federal law that makes it a felony to mail any “article or thing designed, adapted, or intended for producing abortion,” or even any printed advice on how or where to get an abortion or contraception.
As noted this week by The Washington Post’s editorial board, the forced-birth lobby is pushing hard for the enforcement of Comstock, making it the central, overarching policy goal for any renewed Trump administration.
The Heritage Foundation’s Project 2025, a policy blueprint for a second Donald Trump term to which more than 100 conservative groups contributed, says a Trump Justice Department should “announce its intent to enforce federal law against providers and distributors of such [abortion] pills.” Jonathan Mitchell, the former Texas solicitor general who devised that state’s law encouraging civil lawsuits against abortion providers, has said: “We don’t need a federal ban when we have Comstock.”
For these people and their organizations, the Comstock Act is not seen as some type of vestigial prohibition, consignable to a bygone, misogynist era. As Supreme Court Justices Samuel Alito and Clarence Thomas made explicitly clear during the March 26 oral arguments regarding the proposed banning of mifepristone, the Comstock crutch is enjoying a newfound popularity among the forced-birth lobby and its enablers on that court.
As The Washington Post’s editorial board has noted, Republicans in the House and Senate have already declared their enthusiastic support for the enforcement of Comstock’s criminal penalties against companies that distribute or deliver mifepristone:
Last month, 26 Republican senators and 199 GOP members of the House signed a friend of the court brief in the mifepristone case accusing the FDA of “blatant disregard” for the Comstock Act. “These provisions have been federal policy for more than a century,” they wrote. Nine GOP senators signed letters last year to CVS and Walgreens as the pharmacy chains prepared to sell mifepristone, warning that the Comstock Act has a five-year statute of limitations — so nothing would stop the next president’s Justice Department from charging companies or individuals with distributing abortion pills.
Nothing would stand in the way of a newly elected President Donald Trump from issuing an executive order prohibiting the continued sale and distribution of mifepristone. Such an action wouldn’t involve the politically fraught prospect of trying to push a national abortion ban through Congress, something Trump almost certainly doesn’t have the political patience or wherewithal to do. It would, in fact, be fairly irresistible to him as the “path of least resistance” because it would involve virtually no work on his part.
As Caitlin Owens, reporting for Axios, explained in November last year, “the next Republican president could effectively ban most abortions through a simple policy change at the Department of Justice, experts and advocates on both sides of the abortion debate say.” There is no doubt a Trump Justice Department would be staffed with political ideologues prepared to do just that. The Biden administration has issued guidance to the DOJ currently protecting the distribution and sale of mifepristone, but as the Post editorial notes, that guidance can be easily reversed by a new administration.
Trump will, of course deny any such intent in the run-up to the 2024 election, but if he is elected again he will owe an enormous debt to the White Evangelical voter base that already figures to play an outsized role in staffing his federal agencies. He also has a long track record of misogyny. One thing is perfectly obvious, however: He does not care in the slightest about the human consequences of his actions. The only thing Trump cares about is Trump. He will sign off on such an order and forget about it an hour later.
Such an executive order would essentially make terminating any pregnancy far more burdensome, physically and emotionally devastating, and often prohibitively expensive in all areas of the country. For many people living in states that have already passed Draconian laws restricting their reproductive options, it would leave them no recourse but to either continue with an unwanted pregnancy under virtually all circumstances, or attempt an illegal and unsafe means of terminating it. Democrats would sue, but such litigation could last years and would inevitably be handed to the tender mercies of ultraconservative Justices Alito, Thomas, and their ilk.
For her article examining the real-life consequences of Florida’s laws, Kitchener recounts the experience of Anya Cook, whose harrowing experience Kitchener recounted last year in the Post. Cook’s water broke just prior to her 16th week of pregnancy. As Kitchener explained, she was diagnosed in a Florida ER with previability preterm prelabor rupture of the membranes, or PPROM. Despite the fact that her fetus was not viable and she faced life-threatening risks, she was sent home because under Florida’s then-15-week prohibition, the Coral Springs hospital was afraid to treat her. She hemorrhaged on the floor of a hair salon less than 24 hours later.
Interviewed again for Kitchener’s article, Cook had some bitter advice for anyone who now becomes pregnant in the state of Florida:
“Run,” she said. “Run, because you have no help here.”
An estimated 84,000 people sought abortion care in Florida last year, according to state-reported data. As Kitchener emphasizes in her Post article, even if Floridians manage to take back their reproductive rights in the November 2024 referendum (a vote of 60% is the threshold required), that is no solace to the thousands of women and others in the state who may want or need to terminate an unwanted pregnancy between May 1, 2024, and January 2025, the earliest such an amendment could be added to the state’s constitution. As noted by Robin Marty, the director of the West Alabama Women’s Center, interviewed for Kitchener’s article, the question now is no longer where Alabama’s citizens will go, but “where are Floridians going to go—because they have no place to go.”
If Trump is elected again, following Cook’s advice simply won’t be possible. For hundreds of thousands of women, girls, and others across the South facing an unplanned, unwanted pregnancy, there won’t be any nearby state for them to run.
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