Congressional Democrats on Thursday kicked off a legislative push to repeal an 1873 law that prohibits the mailing of obscene materials and whose enforcement related to medication abortion is a top priority of the anti-abortion movement.
The 150-year-old Comstock Act has received renewed attention since the Supreme Court in June 2022 overturned the federal right to an abortion in Dobbs v. Jackson Women’s Health Organization and left abortion regulation up to the states. Ever since, as nearly half of U.S. states moved to restrict or ban abortion, President Joe Biden and his fellow Democrats have tried to shore up access, but their legislative efforts have been stymied by Republican opposition.
“It’s been almost two years since the Trump Supreme Court stripped away reproductive freedom, and it has become so obvious in the last several months that these MAGA Republicans and Trump sycophants have seized on the idea of misusing Comstock,” said Sen. Tina Smith of Minnesota, who earlier in her career was a vice president of a regional Planned Parenthood.
Smith said she was introducing Senate legislation to repeal the Comstock Act’s provisions related to abortion with Sens. Elizabeth Warren of Massachusetts and Catherine Cortez Masto of Nevada. She cited as impetuses the recent Supreme Court case related to mifepristone, one of the two drugs used for most medication abortions; Trump’s failure to state a clear position on Comstock or mifepristone more generally; and a 919-page blueprint for Republican Donald Trump’s potential second presidential term called Project 2025 that was crafted by the influential Heritage Foundation and other anti-abortion advocates.
The blueprint, referring to Comstock’s place in federal law, calls for “announcing a campaign to enforce the criminal prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail.” It states: “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.”
Rep. Cori Bush, who was the first lawmaker to call for Comstock’s repeal post-Dobbs, said it was important to take the blueprint seriously — even though some elected Republicans insist it is the agenda of an outside group and not their own. “We can’t control how a Trump DOJ might interpret the Comstock Act … so we shouldn’t give him the opportunity,” she said.
In the House, companion legislation is expected from Rep. Becca Balint of Vermont, along with Reps. Veronica Escobar of Texas, Bonnie Watson Coleman of New Jersey, Pat Ryan of New York, Mary Gay Scanlon of Pennsylvania and Bush of Missouri. Balint told The 19th she expects there will be a “really strong, broad coalition of women from across the country who represent really diverse communities who will be signing on as cosigners on this bill.”
“We have not just the Democratic support, but also the push from our constituents and voters, who are saying: ‘We need you to play offense on this. Women’s lives are at risk because of the actions of Republicans. We need you to take whatever steps you can to try to avert a national abortion ban,’” Balint said.
“I couldn’t be more excited and relieved that we’re finally getting this out the door,” she added, noting that the lawmakers and abortion rights groups have been working on the legislation now for more than a year.
When enacted in 1873, the Comstock Act prohibited the mailing of material “intended for producing abortion, or for any indecent or immoral use” — this included birth control and pornography as well as anything related to sexual health. After the Supreme Court’s 1973 ruling in Roe v. Wade, the provisions related to abortion were not enforced. Congress in the 1970s also repealed its prohibition on mailing contraception. Health care experts noted that even before Roe, the law was applied to only unlawful abortions.
Democrats have started calling the Comstock Act a “zombie” law that Republicans and the anti-abortion movement are trying to revive to restrict national access to medication abortion, which now accounts for more than 60 percent of abortions in the country. Cutting off access to mifepristone is a top priority because drugs can be mailed across state lines, including into states with strict abortion bans.
Resurrecting the Comstock Act is just one route by which abortion opponents seek to cut off access to medication abortion nationwide.
Shortly after the Dobbs ruling, a group of anti-abortion doctors formed the group Alliance for Hippocratic Medicine to challenge the 2000 approval of mifepristone by the Food and Drug Administration (FDA). The group incorporated in an area of Texas where their challenge would be heard by Matthew Kacsmaryk, a federal judge who opposes abortion . The case made its way to the Supreme Court, which decided last week that the lawyers did not have the standing to bring the case because they had not been personally harmed by the FDA’s approval of mifepristone. The justices left the door open to future challenges, however.
There has been debate even among Democrats about whether legislation to repeal the Comstock Act is the best way to protect abortion access. The Biden administration, for example, takes the position that the mailing of medication abortion is not covered by the statute, even after Dobbs. Smith said that she agreed that it would be a “misuse” of Comstock but that she nevertheless thinks that “we should believe these people when they tell us what they’re going to do. … We can’t just sit by and watch that happen without taking action.”
The Democratic lawmakers acknowledged that it would be difficult, if not impossible, to get their legislation out of either congressional chamber. But, headed into the November 2024 elections, they believe it is important to remind voters of what is at stake — and that Republicans wouldn’t need to pass a federal legislative ban on abortion for access to shrink nationwide. Smith noted that a conservative presidential administration could use its power to severely restrict abortion across the country or that courts could decide one of many cases in the pipeline to the same end.
“We are in the middle of a really decisive battle for the future of this country and the future of abortion rights in this country,” Smith said. The fight over Comstock “demonstrates what is at stake in this election in a very, very clear way.”
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