SerpApi.Org
Up until now, the second Trump Department of Justice has been a massive disappointment for the anti-abortion movement. That may all be about to change. At his recent confirmation hearings, Todd Blanche, Trump’s choice to replace Pam Bondi as attorney general, had several revealing exchanges with Republican senators on abortion. Blanche, the acting attorney general, pledged to use DOJ resources to stop telehealth abortion, and even appeared to agree with Sen. Ted Cruz that the Comstock Act, a 19th-century obscenity law, operates as a de facto national ban on abortion.
Blanche has yet to make it out of committee, much less get confirmed, but Republicans already seem to expect a change in direction at the DOJ: This week, Missouri Sen. Josh Hawley sent the Department of Justice a criminal referral involving Plan C, an organization that provides information about how people in all 50 states can obtain abortion medication.
It may be hard to make sense of Hawley’s high expectations. For years, the Trump White House has consistently bullied congressional Republicans and taken anti-abortion organizers for granted. Any conservative politician who dared to push back could expect to lose their primary to a Trump-backed challenger. Abortion foes unwilling to vote for Democrats had little choice but to stick with Trump, even if he has remained resolutely indifferent to their priorities.
Congressional Republicans have hardly been more forthcoming. The anti-abortion movement’s signature win during the second Trump administration—a provision in the One Big Beautiful Bill Act defunding Planned Parenthood—has now expired as congressional Republicans distance themselves from an unpopular idea ahead of the midterm.
But now, the president has record-low support and responsibility for the least popular war in the history of polling. Congressional Republicans are hardly rushing to stand up to Trump, but below the surface, the dynamic seems to have subtly shifted. Some Republicans now seem to expect concessions from the DOJ in return for their votes for Blanche, especially after the midterm.
Hawley’s request tells us something important about what an updated anti-abortion strategy could look like. For several years, anti-abortion leaders had been fixated on abortion pills, which have made it impossible for states to enforce criminal bans. For the most part, abortion foes have thus far targeted doctors and drug companies that ship the pills.
Hawley is one of several conservatives increasingly focused on speech about abortion. Consider what Plan C does. Americans seeking to buy abortion pills online rely on a number of sources, including shield doctors who practice in states that seek to protect residents from out-of-state criminal and civil consequences. But Plan C doesn’t sell or mail anything—and instead describes itself as a source of information about “how people are accessing abortion pills in the US” and the “safety and efficacy of medication abortion” as well as an advocate for “universal access to abortion pills.” Even Hawley calls Plan C a “referral and logistics hub.”
That Plan C mostly engages in speech seems to have made it a more attractive target for Hawley. His letter lays out a number of ways that the Trump DOJ could crack down on abortion-related speech. He argues that the department could use federal conspiracy and aiding-and-abetting laws because Plan C works with drug manufacturers and providers to provide information about how patients can buy pills. Because some providers are based overseas, Hawley invites the DOJ to apply criminal prohibitions on the shipment of “unregulated foreign pills” to Plan C and providers alike.
And then there is the Comstock Act. Historically, sexual-purity crusaders applied the law not only to items but also to information and even political speech. In 1996, Congress expanded the law to cover “interactive computer services,” an old-timey term for the internet. The DOJ has never enforced this provision in an abortion-related case, but conservatives argue that they could use the Comstock Act to shut down information about abortion too. That is so, they argue, because what remains of the Comstock Act includes language covering anyone who provides “information, directly or indirectly” about how someone could access abortion.
There are real problems with this interpretation of the Comstock Act, but that won’t matter to Blanche if he later decides to give congressional Republicans what they want.
Some congressional Republicans seem to think that the DOJ under Blanche will be more pliable. He already backed down to congressional pressure following the announcement of the administration’s Anti-Weaponization Fund, perceived by politicians on both sides of the aisle as a $1.776 billion slush fund for the president’s friends.
Trump himself may or may not be more biddable on abortion after the midterm. In the past, the president has blamed midterm defeats on the GOP’s abortion position. The issue has never been a priority for his administration. And doing something big on abortion before November would make it even harder for congressional candidates to overcome the president’s near-record-low poll numbers.
But after the midterm, Trump is barred by the Constitution from running again (even if allies continue to make noises that this won’t stop him). If Trump isn’t planning another run, he may be less worried about voters than he is about conservative Christian donors and backers impatient for progress on abortion.
Targeting speech may still seem unnecessarily risky. After all, groups like Plan C will obviously claim the protection of the First Amendment. But Republicans have been experimenting with strategies to frame abortion-related information as unprotected by speech guarantees. That’s true of a new South Dakota law, currently being challenged in federal court, that covers what it frames as illegal advertising. Anti-abortion activists argue that information about abortion is commercial speech, which the court has protected less strongly than political speech, or even that speech about abortion is altogether unprotected because it’s integral to criminal conduct. Compared to most abortion-related objectives, targeting speech may be more appealing to the new Trump DOJ, which has actively sought the phone records of journalists in an effort to unmask confidential sources.
There are hardly any guarantees that Blanche will deliver on any of these promises once he’s confirmed: Trump chose him largely because he never questions the president’s orders. Trump is dangling the promise of action—both from the DOJ and the Food and Drug Administration, which is supposed to be conducting a safety review of mifepristone, an abortion drug whose safety profile has already been exhaustively studied. These signals, too, may be just another example of the president stringing along social conservatives with no intention of taking concrete action unless the federal courts force his hand.
But for supporters of reproductive rights, Blanche’s confirmation will still be ending on an ominous note. Abortion foes have been seeking an in with the president and are hoping that in attacking speech, they can finally break through.
