Can Biden Really Protect Abortion Seekers From Arrest Under Trump?

[Celerity]

Some abortion rights activists are pressuring Biden to issue preemptive pardons for potential violations of the Comstock Act, but experts say that could target people even more.

https://www.notus.org/whitehouse/can-biden-really-protect-abortion-seekers-from-arrest-under-trump

Since Hunter Biden’s pardon, President Joe Biden has been under pressure to improve his clemency record — which is the lowest of any president in modern history — and now some abortion rights supporters are joining those calls. They are specifically urging Biden to preemptively mass pardon abortion providers and patients to protect them from prosecution under the Comstock Act — a series of laws enacted in 1873 that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.” But a mass pardon would not come without risks, some legal experts say.

The law, while unenforceable when Roe v. Wade was in place, could make the mailing of abortion pills illegal if President-elect Donald Trump chooses to enforce it. Some anti-abortion activists want to go further and enforce Comstock as a national abortion ban. Trump has indicated he’s not interested in enforcing the Comstock Act, but Pam Bondi, his pick to lead the Justice Department, is seen as an ally in the anti-abortion movement. A preemptive pardon “needs to happen,” Lizz Winstead, founder of Abortion Access Front, said. “I don’t think Trump gives a shit, which gives Pam Bondi a whole lot of leeway to give a shit, and I don’t think Trump would care if Pam Bondi … enforced it or not.”

Outgoing Sen. Laphonza Butler, former president of the abortion rights group EMILYs List, told NOTUS that while “I wouldn’t know how” a Comstock preemptive pardon would work, Biden should use “every minute that possibly can be used … to talk about and understand all of those opportunities.” Others in the abortion rights movement, though, say there are significant risks to consider, given the gray area the law is in. Rep. Becca Balint, who is leading House Democrats’ efforts to repeal the Comstock Act, told NOTUS that Democrats “do need to try to think about all possibilities” when it comes to dealing with the law as a threat, but added that there are “so many unintended consequences” that could come from a mass pardon.

The Justice Department issued a memo in 2022 stating that, under Comstock, mailing abortion pills is illegal only when “the sender intends them to be used unlawfully,” effectively protecting medication abortion providers and patients. Biden granting a pardon for people who may have violated the law could essentially reverse that guidance. “One of the sort of hesitations I have is, are these people actually violating the Comstock Act? That isn’t a settled legal question,” said Mary Ziegler, a law professor at the University of California, Davis, who specializes in abortion issues. “Issuing pardons is risky in the sense that it would absolutely be used against people going forward if the Biden administration is essentially saying, ‘Yes, we were wrong, and these people are violating the Comstock Act.’”

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