Democrats are bringing an 1873 law that bans the mailing of abortion-related materials into the spotlight as the party makes access to the procedure central to their election messaging.
The Comstock Act was enacted to ban people from sending anything “obscene, lewd or lascivious” in the mail, including “any article or thing designed or intended for the prevention of conception or procuring an abortion.” Even though the act has laid dormant for decades, Democrats have warned that a future Republican president could use the law to shut down abortion access across the country.
The Biden administration interprets the act as applying only to “unlawful” abortions, though conservatives have cited the law to argue against abortion pills mifepristone and misoprostol in court.
Sen. Tina Smith (D-MN), working in conjunction with Rep. Pat Ryan (D-NY) in the House, introduced a bill on Thursday that would repeal the Comstock Act, the latest attempt to put Republicans on defense on the issue.
Over the last month, Democrats have held a series of votes in the Senate meant to bolster vulnerable incumbents, including on contraception and in vitro fertilization. A vote to codify Roe v. Wade is also expected in July.
“The Comstock Act is a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history,” Smith said in a statement. “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 by the Supreme Court in 2022, legal experts regarded the law as a dead letter since the court ruling had established a constitutional right to an abortion. However, after the high court’s 2022 reversal, anti-abortion activists started to point to the Comstock Act as one possible avenue to restrict access further.
Project 2025, a playbook from the conservative Heritage Foundation, released a 900-plus-page policy road map called the “Mandate for Leadership,” readymade for a Republican president to enact upon taking office. The group recommends a future conservative administration use the Comstock Act to block the mailing of abortion pills.
Former President Donald Trump, the presumptive Republican nominee for president, avoided taking a position on the law in an April interview with Time magazine, but congressional Republicans recently accused the Food and Drug Administration of “blatantly disregarding” the Comstock Act in a “friend of the court” brief on a Supreme Court case regarding mifepristone.
Trump has generally sought to neutralize abortion as a political issue, announcing earlier this year that he does not support a nationwide ban on the procedure.
As the abortion pill mifepristone continues to face legal challenges, the Comstock Act has been brought up during oral arguments by both conservative Supreme Court Justices Samuel Alito and Clarence Thomas. However, the Supreme Court refused to consider a request by anti-abortion groups to impose nationwide restrictions in the mifepristone case.
“It’s not some obscure subsection of a complicated obscure law,” Alito said during oral arguments, referring to Comstock as a “prominent provision.”
Democrats have used these and other comments to argue that Trump would use the law as a “backdoor” way to limit abortion.
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.”
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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.
“We moved forward last week on contraception, this week on IVF, and you’ll be hearing more from us on reproductive rights in the near future,” Schumer said.
