Congressional Democrats are planning on how to overturn the Comstock Act, the 19th century law targeted by conservative activists to possibly impose a national abortion ban.th century anti-vice law that’s being targeted by conservative activists to potentially establish a nationwide abortion prohibition.
Sen. Tina Smith (D-Minn.) expressed in a New York Times opinion piece on Tuesday her intention to introduce a bill to remove the Comstock Act as a means to restrict reproductive freedom.
Smith mentioned that she is in discussions with House and Senate Democrats to garner support for the proposed bill, but the talks were preliminary, and there was no set timeline for the legislation to be presented.
“Legislation to repeal Comstock could take many forms, and we need to do it the right way,” Smith stated.
In the House, Rep. Cori Bush (D-Mo.) also called for the law to be repealed, saying it’s a “dead law that the far-right is trying to reanimate.”
It is unlikely a Comstock repeal bill would get very far in the current divided Congress, but Democrats are committed to elevating abortion as an election year issue.
The 151-year-old law specifically prohibits the transportation of “every article or thing designed, adapted or intended for producing abortion.”
Anti-abortion groups argue that the Biden administration broke the law when it permitted the abortion drug mifepristone to be delivered by mail.
During oral arguments at the Supreme Court last week regarding the legality of that decision and other administration efforts to expand availability of mifepristone, Justices Clarence Thomas and Samuel Alito frequently referenced the Comstock Act.
The law was not enforceable while Roe v. Wade was in effect, and it has not been used in almost a century. However, now that Roe has been overturned, anti-abortion activists see an opportunity.
These activists, collaborating with former Trump administration officials, have been preparing for the next Republican administration to enforce the Comstock Act to prevent the mailing of any abortion medicines and materials, effectively prohibiting all abortions without needing Congress to take action.
The last time Democrats introduced any legislation related to the Comstock Act was in 1997, when former Rep. Barney Frank (Mass.) headed the Comstock Cleanup Act of 1997, which would have removed the abortion provision. The bill never progressed.
Abortion rights groups have been cautious about proposing legislation related to the Comstock Act until the Supreme Court rules on the mifepristone case. Smith indicated there won’t be any legislation until after a decision is made later this summer.
“Once the Supreme Court has made its decision (and many legal analysts believe that the mifepristone case heard last week should be dismissed on procedural grounds, and may well be), I’ll be ready to present mine,” she wrote.
