Democrats are spotlighting a 1873 law, the Comstock Act, which prohibits the mailing of abortion-related materials, as a potential threat to access to the procedure. The law, enacted to ban obscene or lewd materials, also bans articles designed to prevent conception or procure an abortion. Despite being dormant for decades, Democrats warn that a future Republican president could use the law to shut down abortion access nationwide.
Senator Tina Smith (D-MN) and Representative Pat Ryan (D-NY) introduced a bill to repeal the Comstock Act, the latest effort to put Republicans on defense on the issue. The Biden administration interprets the law as applying only to “unlawful” abortions, but conservatives have cited the law to argue against abortion pills mifepristone and misoprostol in court.
Senator Smith stated, “The Comstock Act is a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history. Now that Trump has overturned Roe, a future Republican administration could misapply this 150-year-old Comstock law to deny American women their rights, even in states where abortion rights are protected by state law.”
Before Roe was overturned, legal experts considered the law a dead letter, but after the reversal, anti-abortion activists started pointing to the Comstock Act as a possible avenue to restrict access further. The Heritage Foundation’s policy road map, “Mandate for Leadership,” recommends a future conservative administration use the Comstock Act to block the mailing of abortion pills.
Former President Donald Trump, the presumptive Republican nominee, avoided taking a position on the law in an interview, but congressional Republicans accused the FDA of “blatantly disregarding” the Comstock Act in a Supreme Court case regarding mifepristone.
As for Biden, his Justice Department wrote in December 2022 that the Comstock Act “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
Senate Majority Leader Chuck Schumer (D-NY) has yet to take a position on the bill. When asked about it by NBC News last week, he left open the possibility that the Senate takes a vote on it.
