How Republicans just used Todd Blanche’s confirmation hearing to map out the next abortion fight
By Michael Jones
Confirmation hearings are supposed to answer a simple question: Is this person qualified for the job?
But Acting Attorney General Todd Blanche’s hearing last week to become the nation’s permanent top law enforcement officer answered a different one.
Over nearly five hours before the Senate Judiciary Committee, Republican senators repeatedly pressed Blanche not simply about how he would lead the Justice Department, but on how aggressively he would use it to reshape abortion policy after Dobbs.
They weren’t asking about violent crime, fentanyl or organized crime. Instead, Sens. John Cornyn (Texas), Josh Hawley (Mo.), Katie Britt (Ala.) and Ted Cruz (Texas) devoted significant portions of their questioning to medication abortion, an ongoing lawsuit over the abortion pill mifepristone and a 153-year-old anti-obscenity law that has become one of the anti-abortion movement’s most powerful legal theories.
The exchanges revealed that congressional Republicans see the next major abortion battle unfolding through the executive branch rather than through new legislation.
Since the Supreme Court overturned Roe v. Wade in 2022, much of the national conversation has focused on whether Congress would eventually pass a nationwide abortion ban. But with Republicans lacking the votes to do that, many abortion opponents have increasingly turned their attention elsewhere to federal agencies, existing statutes and the courts.
Those priorities were on full display during Blanche’s hearing.
Cornyn, Hawley and Britt repeatedly questioned Blanche about Louisiana v. FDA, the lawsuit challenging the Food and Drug Administration’s decision to allow certified providers to prescribe mifepristone through telehealth and authorized pharmacies to dispense it by mail. The litigation remains pending while the FDA conducts a review of its current regulations.
Cruz went even further.
He asked Blanche whether the Justice Department would “carefully evaluate every lawful action available to ensure the faithful enforcement of the Comstock Act and other federal pro-life acts” to halt the mailing of abortion medication.
Blanche didn’t dodge the question.
“We are not in any way defending what Biden and what his administration did,” he replied. “We very much believe that the Biden rules were wrong.”
He also agreed to evaluate enforcement options under the Comstock Act.
That answer immediately caught my attention because it echoed a strategy that has been circulating in conservative legal circles for years.
Project 2025, the Heritage Foundation-led blueprint for a conservative administration, explicitly urged the Justice Department to enforce the Comstock Act against providers and distributors who mail abortion pills. The document argues that because Congress never repealed the law’s abortion-related language, the federal government should resume enforcing it after Dobbs.
The Comstock Act dates to 1873 and originally prohibited mailing materials deemed “obscene,” including contraceptives, abortion medications and information about reproductive health. While much of the law fell into disuse after later Supreme Court decisions recognizing constitutional protections for contraception and abortion, Congress never removed the underlying statutory language.
Today, supporters argue the law still authorizes the federal government to restrict the mailing of abortion drugs. Reproductive rights advocates counter that such an interpretation would effectively create a nationwide restriction on medication abortion without Congress passing a new abortion ban.
Senate Judiciary Committee Democrats largely chose not to engage Republicans on that legal theory.
Instead, they spent the hearing asking a different set of questions about whether Blanche would preserve the Justice Department’s independence after serving as President Donald Trump’s personal attorney and deputy attorney general.
Afterward, I asked Sen. Sheldon Whitehouse (D-R.I) why Democrats had largely avoided Republicans’ push to secure commitments on abortion policy.
“I think they like to rally around issues that rally the base,” Whitehouse told me. “Unfortunately, that requires them to turn a blind eye to the bad behavior that is happening at the department.”
Sen. Mazie Hirono (D-Hawaii) offered a similar explanation.
“They just bring up their ideological kind of agenda,” she said. “But really for us it has to do with the institution of the Department of Justice, which should be independent.”
Those responses illustrated something important about confirmation hearings.
Republicans and Democrats weren’t really participating in the same conversation: GOP senators used their time to publicly encourage Blanche toward a specific legal strategy on abortion, while their counterparts used theirs to argue that no attorney general can fairly answer those policy questions if the Justice Department itself is no longer independent from the White House.
Both debates matter. But if Blanche is confirmed, it may be the Republican questions—not the Democratic ones—that prove most consequential.
It’s also worth noting how Republicans’ reduced margin after Sen. Lindsey Graham’s sudden death earlier this month, combined with Blanche’s need to avoid losing any GOP votes and the political importance of the attorney general nomination, created an incentive for Republican senators to publicly lock in commitments on issues they care about before voting him out of committee. (Graham’s sister, Darline, has since been sworn in to complete his term and was assigned to his committees, including Judiciary, which provides Blanche a bit more breathing room.)
Democrats, by contrast, left the hearing with a different conclusion.
However forcefully they challenge Trump’s nominees, they lack the votes to dictate the Justice Department’s agenda. That’s why party leaders increasingly argue the only durable path to restoring and expanding abortion rights runs through winning—and holding—congressional majorities, beginning with the 2026 midterms.
Michael Jones is an independent Capitol Hill correspondent and contributor for COURIER. He is the author of Once Upon a Hill, a newsletter about Congressional politics.
