Democrats in the House and Senate introduced bills Thursday to reform the long-neglected law, which they fear could be used by a future Trump administration to severely restrict abortion or effectively ban it altogether.
The bill, sponsored by Sen. Tina Smith (D-MN), would repeal the abortion provisions of the Comstock Law, an 1873 federal law that banned the sending of abortion-related materials through the mail.
“The Comstock Law is a 150-year-old zombie law banning abortion that has long been relegated to the dustbin of history. Yet radical Republicans and Trump judges are jumping on the idea of exploiting the Comstock Law to circumvent Congress and strip reproductive freedom from women across the country,” Smith said in a statement.
“It is far too dangerous to leave this law in place. We cannot allow MAGA judges and politicians to control the lives of American women,” she added.
The 151-year-old law specifically bans the transportation of “any article or thing designed, modified, or intended for the purpose of causing an abortion.”
The law’s interpretation has been narrowed by Congress over the years, leading some experts to say it has become outdated.
But now that the Supreme Court’s landmark Roe v. Wade decision has been overturned, anti-abortion activists see an opportunity.
Working with former Trump administration officials, these activists have been laying the groundwork for the next Republican administration to use the Comstock Act to ban the mail delivery of abortion pills and supplies, effectively banning all abortions without congressional intervention.
During oral arguments at the Supreme Court challenging efforts to expand access to the abortion drug mifepristone, conservative Justices Clarence Thomas and Samuel Alito repeatedly cited the Comstock Law.
Alito questioned why the Food and Drug Administration (FDA) did not challenge the law in its decision to expand availability of mifepristone by mail.
“This is an important provision, not an obscure subsection of a complex and confusing law. Everybody in this field knew this,” Alito said.
A 2022 memo from the Biden administration’s Justice Department interpreted the law as banning mailings only if the mailer knew they would be used for illegal purposes.
Additionally, lower courts have said the Comstock Act only applies to illegal abortions and does not prohibit the distribution of medicines or other items intended to be used for lawful purposes.
But Democrats and the Biden campaign are keeping a close eye on how the Trump administration and Republican lawmakers might use the Comstock Act as part of a broader effort on reproductive rights ahead of the November election.
“Trump’s allies say that the 150-year-old Comstock Act gives him the power to effectively ban medication abortions nationwide, even in states where abortion is currently legal,” Morgan Moore, a senior reproductive rights adviser to the Biden campaign, said in a recent memo to reporters.
“Trump’s advisors’ radical legal theory allows them to use the Comstock Act to prosecute those who facilitate abortions over the Internet or the U.S. Mail, and it also allows them to prosecute women and health care workers,” Moore wrote.
A bill to repeal the Comstock Act is unlikely to get much traction in the current divided Congress, especially with Senate Republicans blocking recent legislation to protect access to contraception and in vitro fertilization, but Democrats are committed to making the abortion issue an election-year issue.
“Republicans in Congress and their allies in state legislatures across the country are out of step with the American people. They will stop at nothing to enact extreme policies that put women’s lives at risk. We know Americans want to be able to make decisions about their own bodies,” said Rep. Becca Balint (D-VT), who introduced the companion bill in the House of Representatives.
Balint was joined by Reps. Corey Bush (Missouri), Veronica Escobar (Texas), Mary Scanlon (Pennsylvania) and Bonnie Watson Coleman (New Jersey).
The Democratic effort is backed by major advocacy groups, including Planned Parenthood, the American Civil Liberties Union, the Center for Reproductive Rights and Reproductive Freedom for All.
The last time Democrats introduced a Comstock bill was in 1997, when then-Massachusetts Rep. Barney Frank led a Comstock Cleanup bill that would have eliminated the abortion provisions, but the bill never moved forward.
Abortion rights groups were reluctant to push any Comstock-related legislation until the Supreme Court ruled on the Mifepristone case.
But the Supreme Court unanimously rejected the challenge on procedural grounds earlier this month, clearing the way for the bill to be introduced.
