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Opinion: How Democrats could use the lame duck to save medication abortions

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Opinion: How Democrats could use the lame duck to save medication abortions

Before Democrats lose the White House and the Senate, they should push through legislation to repeal the Comstock Act, which could be used to prevent legal medically induced abortions everywhere in the United States. Given the success of ballot initiatives that protect the right to abortion in even conservative states in last week’s election, the politics could be right to repeal that 1873 law.

The Comstock Act was adopted to prohibit the interstate shipment of obscene materials. The law also outlawed the shipment of anything meant to prevent conception or end pregnancy.

The law, as it now stands, prohibits the shipment through the mail of “every article or thing designed, adapted, or intended for producing abortion.” It also forbids any “express company or other common carrier” from providing for “carriage” of such items “in interstate or foreign commerce.” The act provides for a sentence of up to five years for the first offense and 10 years plus a fine for the second.

In 2023, 63% of all abortions in states without total bans were medically induced rather than surgical. Conservatives want the federal government to invoke the Comstock Act to prohibit any shipment of mifepristone and misoprostol, the drugs used for medically induced abortions, by mail or other service, in effect ending them in the United States. This would apply even in states with strong abortion protections, such as California.

The Heritage Foundation’s Project 2025, a road map for Donald Trump’s second term as president, explicitly states that “following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.” In June, the right-wing National Review wrote “a new administration is free to enforce the Comstock Act.”

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Enforcing it does not require passing any new laws. Late in the campaign, Trump said he’s not for new legislation requiring a nationwide abortion ban. But Jonathan Mitchell, who represented Trump in the Supreme Court, stated: “We don’t need a federal ban when we have Comstock on the books.” Just a handful of criminal prosecutions threatening doctors with five-year prison sentences for mailing abortion medicines could intimidate most doctors and other providers from doing so.

Even though the Biden administration refused to enforce the Comstock Act, over the last year, a number of commentators have called for it to be repealed. In June, Sen. Tina Smith (D-Minn.) introduced the Stop Comstock Act with co-sponsorship from numerous Democratic Senate and House members. The bill was endorsed by the Congressional Progressive Caucus.

Smith stated at the time: “When MAGA Republicans say they intend to use the Comstock Act to control women’s decisions and enact a backdoor national abortion ban, we should believe them. Now that Trump has overturned Roe, a future Republican administration could try to misapply this 150-year-old Comstock law to deny American women their rights, even in states where abortion rights are protected by state law.”

Congress did not take up the bill. It is imperative that lawmakers do so in the upcoming lame-duck session.

Would they succeed? Before the new Congress is sworn in on Jan. 3, 2025, Democrats in effect hold a 51-49 Senate majority and a four-seat House minority; they wouldn’t need to persuade many Republicans in order to achieve this repeal. Until Jan. 20, Biden is the president who would sign the Stop Comstock Act.

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Abortion is the one issue that Democrats won in this election. Voters in seven states — including conservative ones such as Missouri and Montana — passed laws protecting abortion rights. Even in Florida, which Trump won decisively, 57% of the voters supported an initiative safeguarding abortion rights, though this was less than the 60% needed in that state for it to pass.

Polls show that almost two-thirds of voters support broad abortion rights. In the House, a few Republicans might fall in line with voters’ wishes and back repeal. In the worst case, even if the effort to repeal the Comstock Act failed, it would be politically beneficial for Democrats to have Republicans on record voting to keep this archaic law.

In the weeks ahead, Democrats need to think about what they can do before they lose the White House and the Senate. Repealing the Comstock Act should be a top priority.

Erwin Chemerinsky, a contributing writer to Opinion and dean of the UC Berkeley School of Law, is the author of “No Democracy Lasts Forever: How the Constitution Threatens the United States.” Miles Mogulescu is an attorney and Oscar-nominated filmmaker.

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Oklahoma measure seeks to make school district superintendents an elected position

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Oklahoma measure seeks to make school district superintendents an elected position

Oklahoma will consider a new measure to make the role of school district superintendent an elected position in response to a spate of controversial situations involving scholastic leaders, Fox News Digital has learned.

There have been allegations and news reports about several issues: the refusal to remove “pornographic books” from school libraries, the dismissal of a teacher for failure to comply with a COVID-19 face mask mandate, and media coverage of “nothing [being] done” in response to reports a school football coach was bragging about sexual conquests with parents.

In 2021, Oklahoma Gov. Kevin Stitt called firings of mask-averse teachers “preposterous” and said their talents are needed more than ever.

“This is about a school district not following state law — this isn’t a debate about masks,” he said, after the Oklahoma City district reportedly fired multiple educators, adding the state previously banned such firings.

STATE SCHOOLS CHIEF BILLS KAMALA HARRIS $474M FOR EDUCATION COSTS OF ILLEGAL IMMIGRATION

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In February, Oklahoma State Superintendent of Schools Ryan Walters — who is an elected official himself — threatened to lower the accreditation of Edmond, Oklahoma, schools if it didn’t remove the books “The Glass Castle” and “Kite Runner” from its high school libraries.

Walters called the inaction “subversion of accountability,” though Edmond’s superintendent said the state lacked authority to remove the books based on a 1997 district policy.

In another case, in Edmond, Republican Sen. Ted Cruz from neighboring Texas, among others, blasted videos showing a portion of a school fundraiser wherein students were licking each other’s toes. 

In a public statement, school officials appeared to celebrate the event:

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“This afternoon, Deer Creek High School announced a grand total of $152,830.38 raised for Not Your Average Joe Coffee, an organization created to ‘inspire our community by including students and adults with intellectual, developmental and physical disabilities,” school staff wrote. 

“All participants in the assembly were students who signed up for the game(s) they played ahead of time. No Deer Creek faculty or staff participated in any of the games during this Clash of Classes assembly,” a portion of the latter part of the statement read.

LANDMARK BILL TARGETS HIDDEN FOREIGN FUNDING IN SCHOOLS AS OFFICIALS WARN OF CCP INFLUENCE

Walters called the fundraiser “filth,” and Cruz said it was “child abuse.”

In another district on the Arkansas line, now-former Muldrow Superintendent Leon Ashlock resigned after driving drunk and crashing a school vehicle on Creek Turnpike. Two 100-proof bottles of cinnamon schnapps were found in its console, according to KOCO.

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Walters told Fox News Digital on Wednesday that a case involving a school’s response to an athletic director’s criminal exploits with a student also drew his attention.

“Even in a conservative state like Oklahoma, where voters have overwhelmingly made clear they want the radical progressive policies of the left out of public schools, we continually see superintendents defying their will, ignoring their concerns, and refusing to take action necessary to improve education outcomes while protecting Oklahoma children,” Walters said.

“This has to end.”

“And, the best way to do that is by requiring superintendents to be elected by the voters.”

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Walters called the legislation a common-sense solution to efforts to improve education for Sooner State children.

Walters previously made headlines when he led his state in becoming the first to appropriate funding toward supplying a Bible to each school. The official said the move blunts “woke curricula” and provides students a “historical document” that the founders used to form their government.

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Ahead of second Trump term, California vows 'ironclad' abortion access

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Ahead of second Trump term, California vows 'ironclad' abortion access

California lawmakers are rushing to introduce legislation that reaffirms the state’s role as a reproductive rights “haven” as President-elect Donald Trump prepares to return to the White House and abortion rights advocates warn of an uncertain future.

Abortion remains legal in California, home to the strongest reproductive rights in the nation — unlike in some states, there is no required waiting period or counseling before the procedure, and minors can get abortions without parental involvement. In 2022, voters solidified abortion access in the state Constitution after the U.S. Supreme Court overturned the federal right, limiting healthcare for millions of women.

But as Trump prepares to take the White House again, California’s Democratic leaders are adamant that not enough has been done to secure reproductive access in case of further federal rollbacks.

“The truth is, this is an urgent and dangerous situation,” California Atty. Gen. Rob Bonta said at a news conference in Sacramento on Monday, pointing to renewed legal challenges to the distribution of abortion pills. “The right-wing extremists continue to wage attack after attack on our bodily autonomy at the expense of the health or life of pregnant persons.”

Bonta, a Democrat, said new legislative proposals will make reproductive rights in California “ironclad.”

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Gov. Gavin Newsom’s earlier focus on abortion rights after Trump’s first term — including ad campaigns in red states — have drawn criticism from California Republicans skeptical of his national political motives and praise from advocates who say it is better to be safe than sorry. He has signed dozens of bills firming up abortion access in recent years, but some of his plans have proved to be more flash than substance. A temporary law allowing doctors licensed in Arizona to provide abortions in California, for example, expired without any doctors using it.

“He makes the big pronouncements, but he’s not a very good executor of those policies,” said Assembly Republican leader James Gallagher of Yuba City. “It’s kind of become his M.O., to make a big splash and then nothing really ever comes of it.”

Democrats, however, see the need to shore up abortion access given the uncertainty of Trump’s plans. A bill introduced this week aims to ensure availability of mifepristone and misoprostol — the commonly used two-step medication abortion process — even if the Trump administration attempts to interfere.

At issue is how antiabortion government officials could revive and interpret the Comstock Act, a federal law that once banned the mailing of “obscene” materials related to abortions.

While Trump has said he has no plans to ban abortion nationwide, he has repeatedly flip-flopped on the issue and taken credit for appointing conservative Supreme Court justices who reversed the federal right to abortion with their decision in the landmark Dobbs case.

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Reproductive health advocates are worried that under his second term, the U.S. Food and Drug Administration could limit access to abortion medication. To lead the FDA, Trump has tapped Dr. Marty Makary, who has echoed antiabortion messages on Fox News about fetal pain — something disputed by major medical organizations.

The California bill by Assemblymember Maggy Krell (D-Sacramento), a legislative newcomer and former Planned Parenthood attorney, aims to ensure that Californians continue to have access to medication abortion for the foreseeable future and protects “manufacturers, distributors, authorized healthcare providers and individuals” from any legal action for distributing or administering the pills.

“There are emerging threats to the availability of mifepristone and misoprostol, and California may not be able to guarantee a continued supply,” the bill states. “Previously, Governor Newsom implemented a plan to stockpile doses of misoprostol. While this effort was successful, the Legislature finds that the state needs to renew its stockpile to ensure that Californians can continue to exercise their constitutional rights.”

Last year, Newsom rushed to stockpile hundreds of thousands of abortion pills after a Texas judge ruled against the authorization of the medication.

“We will not cave to extremists who are trying to outlaw these critical abortion services. Medication abortion remains legal in California,” Newsom said then.

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But, facing expiration dates, the state released the stockpile to the public before the U.S. Supreme Court decision that rejected the Texas court’s ruling.

In Washington, Democratic Gov. Jay Inslee chose to hold on to a similar stockpile in case Trump was elected again.

A spokesperson for Newsom said California “remains ready” to procure more pills if needed.

In another precautionary move last year, Newsom signed a law that allowed abortion providers in Arizona to temporarily practice in California. The action came after the Arizona Supreme Court reinstated an 1800s law that essentially banned all abortions.

No Arizona providers ended up using the program, which expired Dec. 1, according to the California Department of Consumer Affairs. Concerns settled in Arizona after Democratic Gov. Katie Hobbs signed a bill that repealed the court decision, and voters last month passed a state constitutional amendment guaranteeing a right to abortion.

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The California legislation “was designed to serve as a swift stop gap measure to preserve continued access to abortion care, if necessary, during this very precarious moment,” California Department of Consumer Affairs spokesperson Monica Vargas said in an email when The Times asked for data about the program’s use.

Newsom also signed a law last year that allowed medical residents from states with “hostile” laws to get abortion training in California. The state does not require the California Medical Board to track whether that program is being used as intended, a spokesperson said.

For Republican critics like Gallagher, those programs are instances of “political theater” meant more to draw attention to an issue than provide substantive policy. Newsom this week called a special legislative session in Sacramento to prepare for legal combat with Trump on issues such as abortion and immigration — a move heralded by liberals as smart preparation for an unpredictable president and criticized by conservatives as unnecessary panic.

“In California, abortion is constitutionally protected, and you have a president-elect who has said very clearly he will not support any national abortion ban,” Gallagher said. “This perceived threat that they’re trying to make into a political volley … it’s just Newsom drawing attention to himself.”

Some abortion advocates said that they’d rather have a nimble governor like Newsom and be cautious even if the emergency plans don’t always pan out.

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“Now more than ever is the time for innovative policy solutions,” said Shannon Olivieri Hovis, a spokesperson for Essential Health Access. “And inevitably, it is going to be the case that not all solutions we put forth will be equally effective.”

Other bills introduced this week seeking to fill California’s reproductive health access gaps include a proposal to financially penalize cities and counties that block the building of abortion clinics, as has happened in Beverly Hills and Fontana.

Assemblymember Mia Bonta (D-Oakland) introduced a package of bills that would ensure hospitals enforce laws that require emergency rooms to provide abortion care; make it easier for Medi-Cal recipients to get birth control; and prevent birthing centers from closing.

About 40% of California counties don’t have abortion clinics, including rural areas where transportation can be a hurdle. In September, the state sued a Humboldt County Catholic hospital after a patient said she was denied an emergency abortion even as she feared for her life because of miscarriage risks.

“We have to be absolutely clear-eyed about the political and social moment we’re in right now … when we have a proven misogynist as a president,” said Mia Bonta, who is married to the attorney general, referring to Trump’s sexual abuse allegations and “your body, my choice” refrains that surged after his election.

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“I think while California has done an amazing job, we still have a lot of work to do to shore up the infrastructure of support for people who are seeking healthcare and abortion access and protection of our reproductive and sexual freedoms.”

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House GOP leaders endorse Trump-backed candidate Jimmy Patronis for Matt Gaetz's old seat

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House GOP leaders endorse Trump-backed candidate Jimmy Patronis for Matt Gaetz's old seat

House Republican leaders have endorsed Florida Chief Financial Officer and State Fire Marshal Jimmy Patronis for election in the Sunshine State’s 1st Congressional District.

House Speaker Mike Johnson, R-La., House Majority Leader Steve Scalise, R-La., and House Majority Whip Tom Emmer, R-Minn., are all backing the candidate.

Patronis shared the endorsements on social media, thanking each of the House GOP figures.

WITH TRUMP PLEDGING ENDORSEMENT, FLORIDA CFO WILL RUN FOR MATT GAETZ’S FORMER HOUSE SEAT

U.S. Speaker of the House Mike Johnson (C), accompanied by U.S. House Majority Whip Rep. Tom Emmer (L), and U.S. House Majority Leader Rep. Steve Scalise (R) speaks during a news conference on Capitol Hill on Nov. 19, 2024 in Washington, D.C. (Andrew Harnik/Getty Images)

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Last month, President-elect Donald Trump urged Patronis to run, pledging to endorse him.

“Should he decide to enter this Race, Jimmy Patronis has my Complete and Total Endorsement. RUN, JIMMY, RUN!” Trump declared in a Truth Social post

Special primary and general elections will be held next year to fill the seat vacated last month by Matt Gaetz, who resigned from Congress after Trump nominated him to serve as attorney general. 

FLORIDA CFO REQUESTS REPORT ON POTENTIAL FOR INVESTING SOME STATE RETIREMENT SYSTEM FUNDS INTO DIGITAL ASSETS

Florida CFO Jimmy Patronis

Florida CFO Jimmy Patronis delivers remarks before Gov. Ron DeSantis took to the stage. (Tiffany Tompkins/Bradenton Herald/Tribune News Service via Getty Images)

Gaetz, who had just been re-elected prior to leaving office, ultimately withdrew himself from consideration for the Cabinet-level post. 

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But Gaetz is not the only Trump nominee who has bowed out.

FLORIDA SHERIFF CHAD CHRONISTER WITHDRAWS AS TRUMP’S NOMINEE TO LEAD DEA

President-elect Donald Trump

President-elect Donald Trump looks on during the UFC 309 event at Madison Square Garden on Nov. 16, 2024, in New York City (Chris Unger/Zuffa LLC)

Hillsborough County Sheriff Chad Chronister, who Trump recently nominated to serve as administrator of the Drug Enforcement Administration, withdrew himself from consideration for the job.

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