Todd Blanche just opened the door to national abortion ban

This article has been republished from Autonomy News, a worker-owned publication covering reproductive rights and justice. Follow Autonomy News on Instagram, Bluesky, TikTok, Threads, and LinkedIn.

At the very end of acting Attorney General Todd Blanche’s Wednesday confirmation hearing, Texas Senator Ted Cruz got Blanche to commit to taking a step that could upend abortion access in all 50 states.

Cruz brought up the Comstock Act, an 1873 anti-obscenity law that abortion opponents want to use to stop the mailing of abortion pills. He pressed Blanche to review Biden-era guidance that cleared shipments of medication abortion into states that ban abortion. Alarmingly, Blanche agreed.

The 19th-century law made it a federal crime to mail, possess, give away, or sell “obscene materials”—including items used for abortion. Parts of the law relating to birth control were repealed in 1971, but Comstock was never repealed in its entirety. When abortion providers started prescribing pills to patients in states where abortion was banned thanks to “shield” laws, anti-abortion activists argued that this was a violation of the Comstock Act. Project 2025 also called for criminal prosecutions of abortion pill providers under Comstock, though the document only references the law by statute number, not by name.

In response, a December 2022 opinion from the Justice Department’s Office of Legal Counsel said it was not illegal for the U.S. Postal Service and other carriers like FedEx and UPS to deliver abortion medications to states that ban abortion, and that Comstock did not apply unless the sender intended pills to be used unlawfully. That interpretation has reassured abortion providers that they can prescribe pills across state lines without fear of federal prosecution.

Cruz asked the nominee point blank to review the 2022 memo. Blanche said he would. “Office of Legal Counsel opinions may be reconsidered when the attorney general concludes they are inconsistent with the law,” Cruz said. “Will you commit to carefully reviewing that opinion to ensure that it faithfully reflects the actual statutory text [of the Comstock Act] that Congress enacted?” Blanche responded with an instant “yes.”

Notably, Donald Trump appointed two anti-abortion lawyers to the Office of Legal Counsel last summer: Elliot Gaiser, who in 2020 called abortion a “moral evil;” and Josh Craddock, a Comstock proponent who also believes that fertilized eggs are people under the Fourteenth Amendment. 

Cruz also brought up Comstock in the context of a lawsuit that Louisiana filed against the Food and Drug Administration, which seeks to end telemedicine prescriptions of mifepristone, the first of two drugs in a typical medication abortion. “Without asking you to comment on the merits of that litigation, will you commit that the [Justice] Department will carefully evaluate every lawful action available to ensure the faithful enforcement of the Comstock Act and other federal pro-life acts?” Again, Blanche said yes.

Blanche, Donald Trump’s former personal lawyer, didn’t hesitate in any of his responses to Cruz. Here’s video of the exchange.

Ted Cruz is the latest of a string of Republican senators to push an agreeing Blanche to ban the mailing of mifepristone. They’re coming for abortion pills next.

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— Aaron Rupar (@atrupar.com) 11:05 AM · Jul 15, 2026

Blanche’s comments come as anti-abortion activists and lawmakers like Missouri Senator Josh Hawley are pressuring him to commit to the DOJ settling with Louisiana in its suit against the FDA. Ostensibly, a settlement would involve the agency agreeing to end telehealth prescriptions of mifepristone nationwide. Hawley’s wife Erin is representing Louisiana in that litigation.

That case is pending before the Fifth Circuit Court of Appeals, with a hearing scheduled for September. When an emergency appeal in the lawsuit reached the Supreme Court in May, Justice Clarence Thomas wrote a dissent espousing the same view on Comstock that Cruz took today. Thomas claimed that “it is a criminal offense to ship mifepristone for use in abortions” under the law and that the drug’s manufacturers are engaging in “criminal enterprise.”

Nearly 115 Republican members of Congress, including Cruz, filed a “friend of the court brief” on Louisiana’s side at the Supreme Court, arguing that mailing mifepristone violates the Comstock Act. Cruz also signed a January 2023 letter to then-AG Merrick Garland urging him to enforce Comstock related to the shipping of mifepristone, alongside 40 other members of Congress including now-Vice President JD Vance.

American Civil Liberties Union chief political and advocacy officer Deirdre Schifeling called Blanche an “anti-abortion yes man” in a statement. “Todd Blanche demonstrated that if confirmed as Attorney General, he will be content to go along with anti-abortion extremists’ plan to restrict medication abortion nationwide,” Schifeling said. “Senators pushed dangerous misinformation about medication abortion and fringe legal theories that would ban abortion nationwide entirely—and Blanche blithely entertained them.”

Katie O’Connor, senior director of federal abortion policy at the National Women’s Law Center, said, “Once again, Blanche has shown that he is a Trump loyalist above all else, and would rather further the president’s extreme anti-abortion agenda than work on behalf of the American public.”

The abortion-related provisions of the Comstock Act were rarely enforced after the 1930s. The law only applies to “unlawful” abortions, and judges have generally agreed that it doesn’t apply to medications or devices prescribed or used by physicians.

However, anti-abortion leaders argue that the DOJ could weaponize Comstock to ban not just telemedicine abortions, but shipments of abortion drugs to brick-and-mortar clinics. The most extreme interpretation could even result in a ban on shipping supplies used in procedural abortions, as Comstock applies to all materials, not just medications. As anti-abortion legal activist Jonathan Mitchell said in early 2024, “We don’t need a federal ban when we have Comstock on the books…There’s a smorgasbord of options.” Mitchell has filed multiple lawsuits that ask federal courts to declare the law is active.

That’s why some Democrats wanted to repeal Comstock ahead of the 2024 election. However, three major reproductive rights organizations—Planned Parenthood, Center for Reproductive Rights, and the American Civil Liberties Union—advised Vermont Rep. Becca Balint not to introduce a Comstock repeal bill in 2024, per NOTUS. They were concerned it could affect the outcome of the first abortion pill lawsuit to work its way up to the Supreme Court after the fall of Roe v. Wade. Some Democrats also worried that introducing a Comstock repeal could validate anti-abortion ideologues’ interpretation of the law, which they believe to be incorrect.

But others viewed complacency as dangerous. “I fully agree with the [Biden] administration’s position … that it’s illegal to use Comstock to ban abortion,” Minnesota Sen. Tina Smith told NOTUS. “However, I can see, as can everybody else, that the extreme right-wing MAGA Republicans have a road map for using Comstock to do exactly that, and so, as a legislator, it’s my job to do everything I can to take that tool away from them.”

In June 2024, Smith and Balint were among the cosponsors when a repeal bill was finally introduced. This happened shortly after the Supreme Court punted the legal battle over abortion pills back to lower courts, which seems to have assuaged previous concerns from Planned Parenthood, CRR, and the ACLU, because they endorsed the measure.

Still, the bill disappointed many advocates because it failed to fully repeal the Comstock Act. Instead, it would have merely removed language about abortion from the statute. A source involved in crafting the legislation told Garnet at the time that this was because of an unlikely roadblock: the Biden Department of Justice. The DOJ claimed it needed the Comstock Act—specifically, the part that bans “obscene” materials—to prosecute cases involving child sexual abuse material (CSAM).

“Obviously, we couldn’t really have that,” the source said. “It’d be a GOP field day on ‘Dems support child porn.’”

The partial repeal was always a longshot. Even if it had gained majority support in both chambers, it almost certainly couldn’t have won a filibuster-proof majority in the Senate. But lawmakers worried that having the repeal effort labeled “pro-porn” or “pro-child abuse” would have killed any attempt to repeal Comstock in the future. Similar bills had been introduced in 1997, 1999, and 2001, but none ever received a floor vote.

Following the death of Senator Lindsey Graham, Blanche can’t lose a single Republican vote on the Judiciary Committee. Senators John Cornyn and Thom Tillis had been noncommittal about his confirmation, but released a letter Tuesday urging him to settle the Louisiana mifepristone lawsuit. Nothing Cornyn or Tillis said during the hearing suggested they would vote against advancing Blanche.

Blanche also spouted misinformation during the hearing, telling Senator Chuck Grassley that, “For the first time in a decade, HHS and the FDA are actually taking a real look at what’s happening with some of these abortion pills and whether they’re actually safe or not.” To Senator Katie Britt he said, “it’s not only what the Department of Justice can do, but it’s what the FDA is doing right now for the first time in a decade: Actually doing real studies about the safety and the appropriateness of these drugs.” More than 100 studies have shown mifepristone to be safe and effective for ending an early pregnancy. The FDA’s decision to allow telehealth prescriptions was based on real-world data.

Hawley did not directly ask Blanche Wednesday to settle the suit, though he did ask why the administration couldn’t just restore the old rules requiring in-person appointments while the FDA conducts a politicized safety review. Blanche responded, “I don’t think it’s appropriate to talk about our litigation strategy here, except to say that we want to get to a good result consistent with President Trump’s administrative directive and priorities, and we very much believe that the Biden rules were wrong.”

Blanche then said part of the purpose of the FDA’s bogus review is to have something to point to in court. “We have to have studies that we can defend in court,” he said. “We have to be able to say to a judge, probably in this district, that our change was not arbitrary and capricious.” 

His answer shows that the Trump administration expects lawsuits in response to any changes it may make to mifepristone prescribing. But the DOJ could significantly limit access to medication abortion even without changes to FDA policy. Rescinding the Biden-era guidance on Comstock would signal to telehealth abortion providers that federal prosecutions may be coming—and that could scare some of them away even if no charges were ever filed.