The outcome of the 2024 election will have a profound impact on access to abortion care in this country. Donald Trump’s allies have drawn up an agenda for a potential second presidential term, and they have made clear that if Trump is elected, he will dust off a 150-year-old federal statute called the Comstock Act to ban all abortions nationwide without any need for congressional action.

You read that right: Anti-abortion groups are peddling the radical theory that abortion could be banned in every state the moment he takes office.

And because anti-abortion politicians know that the American people oppose having our reproductive rights taken away, they’re trying to keep these plans under the radar until it’s too late—advising Trump and anti-abortion groups to keep quiet about their plan to impose a back-door abortion ban until after the election.

It’s long past time to shine a spotlight on this outrageous scheme, and why it’s just plain wrong.

The Comstock Act is an 1873 anti-obscenity law that, among other things, makes it a crime to mail anything that’s “indecent, filthy, or vile” or “intended for producing abortion.” Its namesake, Anthony Comstock, was an infamous Victorian-era anti-vice crusader who, as the Supreme Court has explained, “believed that anything remotely touching upon sex was obscene.” Comstock took credit for arresting thousands and driving at least 15 people to suicide through his anti-vice crusades.

Trump’s anti-abortion allies are trying to revive this zombie law, claiming that the Comstock Act is a dormant national abortion ban already on the books, just waiting to be enforced by a Trump Department of Justice. According to anti-abortion extremists, the Comstock Act makes it a crime to send or receive drugs or articles that are used in abortion care by mail or common carriers like UPS and FedEx. That interpretation of the law is wrong; it flies in the face of how courts and the Department of Justice have long interpreted the law. But if anti-abortion judges buy into this unfounded theory, it would effectively amount to a nationwide abortion ban because the medication and equipment used in abortion care are transported by mail and common carrier.

Abortion Criminal Defense Initiative

Source: American Civil Liberties Union

That likely means that abortion medication like mifepristone won’t even leave the factory. It means that companies that produce medical instruments, ultrasound machines, and other items used in abortion care couldn’t send them to abortion providers, and abortion providers couldn’t obtain the materials they need.

The plan to enforce the Comstock Act as an abortion ban is spelled out in the Heritage Foundation’s 180-Day Playbook, which details nearly 900 pages’ worth of “actions to be taken in the first 180 days of the new Administration.” The scheme is echoed by Jonathan Mitchell, Trump’s lawyer before the Supreme Court and the architect of Texas’s abortion bounty-hunter law, S.B. 8, who has made clear that a Trump Department of Justice would wield the Comstock Act as a backdoor abortion ban: “We don’t need [Congress to pass] a federal ban when we have Comstock on the books.”

Mitchell wants Trump and anti-abortion groups to “keep their mouths shut [on Comstock] as much as possible until the election.” Once in office, they plan to shut down abortion care nationwide without any need for congressional action.

To be clear, the argument that the Comstock Act is a dormant national abortion ban is legally wrong. That’s true for many reasons:

• First, starting in the early twentieth century, federal appellate courts reached a consensus that the Comstock Act only criminalizes sending and receiving materials to be used for otherwise unlawful abortion and contraception. The courts’ uniform conclusion was that the Act does not apply to drugs and articles sent and received for lawful abortion care. Importantly, courts reached this consensus well before the Supreme Court’s recognition of the constitutional right to contraception and abortion in Griswold v. Connecticut, and Roe v. Wade; the interpretation in no way turned on the existence of a constitutional right.

• Second, Congress was well aware of the court decisions that the Comstock Act doesn’t apply to lawful abortions. If Congress disagreed with the courts, it could have changed the law. Instead, Congress repeatedly reenacted the Comstock Act’s abortion provisions without modifying the language in response to the decisions. This means that Congress concurred with courts narrowing the scope of laws under the principle of congressional ratification. As the Supreme Court explained in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, “[i]f a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”

• Third and relatedly, the United States Postal Service, the agency that enforces the Comstock Act’s mailing restrictions, also concurred with the courts’ settled interpretation of the Act, and in 1970 informed Congress of its position. This timeline bolsters the conclusion that Congress accepted the appellate courts’ narrowing construction of the law.

• Fourth, the Department of Justice has publicly endorsed this interpretation of the Comstock Act in a December 2022 Office of Legal Counsel opinion. As the opinion explains, “[b]ased upon a longstanding judicial construction of the Comstock Act, which Congress ratified and USPS itself accepted,” the Comstock Act “does not prohibit the mailing, or the delivery or receipt by mail, of [abortion-inducing medications] where the sender lacks the intent that the recipient of the drugs will use them unlawfully.

In short, Trump’s allies’ argument that the Comstock Act can be enforced as a national abortion ban defies the settled determination by federal courts and the Justice Department that the law does not apply to lawful abortion care.

But we have seen anti-abortion extremists manipulate the law to ban abortion before. Roe was settled law for decades until a reconstituted Supreme Court reversed course in Dobbs and allowed states to ban abortion. And before Dobbs, Trump’s lawyer, Jonathan Mitchell, managed to impose an abortion ban in Texas that ought to have been struck down as unconstitutional, but that survived because of its manipulative bounty-hunter enforcement scheme.

So when Mitchell, who is on the short list to become Trump’s attorney general, endorses the dangerous Comstock scheme, the threat is deadly serious.

Applying for jobs can be a difficult and frustrating experience: you’re putting forward your qualifications to be judged by a prospective employer. We all want to be treated fairly. We want our qualifications to speak for themselves. But for job seekers who have been historically excluded or discriminated against because of their race, gender identity, or disability, there can be another question lurking in the background: Am I being judged, not for my ability to do the job, but for my identity?

Automated decision-making tools, including those using artificial intelligence, or AI, and algorithms, have been widely adopted in hiring. Today seven out of 10 employers use them. We have previously written about AI and some of the newer ways that it’s impacting hiring, including how it lacks transparency and can harbor serious flaws that lead to bias and discrimination. But these tools are just the latest frontier in a long history of employment tests that can discriminate and harm job seekers. For example, one of the landmark civil rights cases, Griggs v. Duke Power Co (1971), was about a company’s use of bogus tests to block the promotion of Black workers.

How Artificial Intelligence Might Prevent You From Getting Hired

AI-based tools are used throughout hiring processes, increasing the odds of discrimination in the workplace.

Source: American Civil Liberties Union

When tests and tools that have a long history of problems are combined with new technologies like AI, risks of harm only increase, exacerbating harmful barriers to employment based on race, gender, disability, and other protected characteristics. While the harm of racial discrimination in employment tests has long been recognized and challenged, there has been less awareness about how these tests impact applicants who, in addition to facing racial discrimination, face discrimination based on their disabilities.

The use of personality assessments in hiring processes has become increasingly common. Yet these tests often ask general questions that may have little to do with the ability to do the job and capture traits that are directly linked with characteristics commonly associated with autism and mental health conditions such as depression and anxiety. This creates a high risk that qualified workers with these disabilities will be disadvantaged compared to other workers and may be unfairly and illegally screened out.

Know Your Rights | Know Your Digital Rights: Digital Discrimination in Hiring

Equal access to job opportunities is a core component of economic justice. Increasingly, employers are using automated tools in their hiring...

Source: American Civil Liberties Union

To push back, we filed a complaint to the Federal Trade Commission (FTC) against Aon, a major hiring technology vendor, alleging that Aon is deceptively marketing widely used online hiring tests as “bias-free” even though the tests discriminate against job seekers based on traits like their race or disability. The ACLU and co-counsel have also filed charges with the Equal Employment Opportunity Commission (EEOC) against both Aon and an employer that uses Aon’s assessments on behalf of a biracial (Black/white) autistic job applicant who was required to take Aon assessments as part of the employer’s hiring process.

Two Aon products, a “personality” assessment test and its automated video interviewing tool, which integrate algorithmic or AI-related features, are marketed to employers across industries as cost-effective, efficient, and less discriminatory than traditional methods of assessing workers and applicants. However, these products assess very general personality traits such as positivity, emotional awareness, liveliness, ambition, and drive that are not clearly job related or necessary for a specific job and can unfairly screen out people based on disabilities. The automated features of these tools exacerbate these fundamental problems, particularly as Aon incorporated artificial intelligence elements in its video interviewing tool that are also likely to discriminate based on disability, race, and other protected characteristics.

Cognitive ability assessments, another staple in hiring, must also be subject to scrutiny, as they have long been shown to disadvantage Black job candidates and other candidates of color and may also unfairly exclude individuals based on disability. These tests, touted to measure aspects of memory, as well as several others it markets, have racial disparities in performance.

For autistic and other neurodivergent job applicants and applicants of color, cognitive ability assessments pose a significant barrier to employment. Not only do they fail to accommodate diverse needs, but they also perpetuate discrimination based on race, disability, and other traits. Employers should not use assessments that carry a high risk of discrimination. Employers risk screening out people who could be successful employees, impacting diversity in the workplace, and could face legal liability, even where the assessments are designed and administered by third-party vendors. Employers have a legal obligation to thoroughly vet any assessments they use for compliance with anti-discrimination laws, and if they decide to use an assessment, they must provide meaningful notice so that disabled workers can make an informed choice whether to seek accommodations or alternative processes.

But vendors must also be accountable for the tools they market. Employers can hold vendors accountable by demanding that vendors truly design their products to be inclusive – including by incorporating the perspectives and experiences of people with disabilities and other protected groups into their design process — and conduct thorough auditing for discrimination based on race, disability and other protected characteristics. They can also demand transparency and decline to purchase their products if they fail to do so. And vendors can and should also be held legally accountable for their discriminatory products and deceptively marketing them. As the EEOC recently argued in a federal case about discrimination in an online hiring product, vendors can be held accountable under employment discrimination laws, and our FTC complaint should serve as notice to vendors that we will seek to hold them accountable under consumer protection laws as well.

As the hiring landscape continues to change and job applicants face new hiring tools, we must strive for a future where skills and potential, not bias, determines our opportunities. The ACLU stands ready to defend the rights of individuals wronged by discriminatory practices. Together, we can dismantle discriminatory barriers and build a more inclusive workforce for all.

For more than 100 years, the ACLU has defended students’ First Amendment rights across the United States. Since April, more than 2,000 people have been arrested or detained for participating in anti-war protests on campuses across the country. And it’s not just anyone and everyone protesting on campus who’s getting arrested or facing unjust repercussions. Specifically, authorities are disproportionately targeting those protesting for the rights of Palestinian people.

“We will defend anyone whose free speech and association are being challenged and stifled by the government. But especially in this moment, we’re not seeing ‘both sides’ be stifled in the same way,” said Allegra Harpootlian, a senior communications strategist with the ACLU. She’s part of the team who helped put this comic series together.

“The majority of censorship and repression has been directed toward people who are supporting the Palestinian people, and that was definitely true in the case of Students for Justice in Palestine at the University of Florida.

The story of Students for Justice in Palestine (SJP) at the University of Florida is so emblematic of attempted censorship, that I made a comic about it, with the help of a team at the ACLU. In it, we aim to provide young people with important information about unlawfully silencing free speech that could apply to them right now. We also want to highlight stories of bravery by students who fought for their rights.

The process of creating the comic began months ago. It’s been a long journey, and for good reason; illustrative journalism – especially pieces that include minors or young people – requires close attention to detail, and careful depiction of a subject. But in this case, I knew it was especially important to consider legality and safety when mixing the story with illustration.

Like I described in the Q&A for the first comic in this series, it’s important for the person or group I’m portraying to feel comfortable with the visual representation I’m creating of them. The students who were a part of the case challenging threats to deactivate the University of Florida’s SJP organization also needed an additional layer of safety: individual anonymity.

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Even outside of especially sensitive cases like this one, It’s important for journalists to consider the safety of young people when writing news about them that may leave them vulnerable to negative consequences, which is why I offer the option of anonymity to the demographic more often than not. Young people are taking a greater risk in sharing their difficulties than most older adults – many are yet to begin their public, adult lives. As a journalist determined to bring stories of injustice towards youth and young adults to light, my job is to represent their struggles and victories in a way that helps them and others like them, not to harm their future.

In the past few years especially, activists have been subject to digital attacks that go beyond the verbal, such as doxxing and hacking, which is why protecting the identities of young people was just as, if not more, pressing in this piece. The safety of University of Florida SJP members was a core concern from the beginning of bringing their case.

Harpootlian, the ACLU communications strategist on our comics team, was also part of the group advising the students on safety protocols at the time of the case.

“We know there is no perfect solution to digital privacy, but we also e have a duty to keep our clients safe. We took this case on right around the time that two students had been shot in Vermont, and Florida is a concealed-carry state. It is a state that has had violence against activists,” she said. “We didn’t want to put students in harm’s way.”

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So I did the same. That’s why the comic is set in the first-person plural perspective – the “we” in the panels. In telling stories of struggle and resilience, I didn’t want to single out one student, just for them to fall in harm’s way for telling their story.

It wasn’t a challenge to maintain detail and narrative despite not being able to work with a specific perspective. So much of what these students went through happened with each other – they faced their challenges as a collective.

Collectively, students in the University of Florida’s chapter of Students for Justice for Palestine were afraid of the consequences of threatened disbandment. Collectively, the students – who come from all backgrounds, including those who are not Palestinian, Arab, Muslim, or Jewish – felt the stigmatization of the phrasing used in the memorandum that called for the group’s disbandment.

And collectively, that same group of students continued to speak out, despite the pressure that came from, in the words of the judge who oversaw the case, the most powerful person in Florida.

This piece is meant to reflect the perspective of some of the students who make up the Students for Justice in Palestine chapter at the University of Florida. The final panel of the comic displays resolute students continuing to march even after months of threatened repercussions. The panel’s text reads, “Our chapter believes that speaking up for Palestine is speaking up for humanity.”

Despite the arduous experience of taking Florida officials to court, the University of Florida SJP members said they were proud to have fought for the First Amendment rights of all students. At a time when free speech and free expression in schools are under attack across the country, the students at the University of Florida are not alone, and they must not be silenced.