Democrats move to repeal 1873 law they say could pave way for national abortion ban

<span>Senator Tina Smith speaks at the US Capitol earlier this year</span><span>Photograph: Anna Rose Layden/Reuters</span>
Senator Tina Smith speaks at the US Capitol earlier this yearPhotograph: Anna Rose Layden/Reuters

Democrats introduced legislation on Thursday to repeal a 19th-century anti-obscenity law that bans mailing abortion-related materials, amid growing worries that anti-abortion activists will use the law to implement a federal abortion ban.

The bill to repeal the Comstock Act was introduced by the Minnesota Democratic senator Tina Smith, whose office provided a draft copy of the legislation to the Guardian. The Massachusetts senator Elizabeth Warren and Nevada senator Catherine Cortez Masto also back the bill, according to the Washington Post, which first reported the news of Smith’s plans. Companion legislation was also set to be introduced in the House.

“We have to see that these anti-choice extremists are intending to misapply the Comstock Act,” Smith said in an interview. “And so our job is to draw attention to that, and to do everything that we can to stop them.”

Passed in 1873, the Comstock Act is named after the anti-vice crusader Anthony Comstock and, in its original iteration, broadly banned people from using the mail to send anything “obscene, lewd or lascivious”, including “any article or thing designed or intended for the prevention of conception or procuring an abortion”. In the 151 years since its enactment, legal rulings and congressional action narrowed the scope of the Comstock Act. For years, legal experts regarded it as a dead letter, especially when Roe v Wade established the constitutional right to an abortion.

But after the US supreme court overturned Roe in 2022, some anti-abortion activists started arguing that the Comstock Act’s prohibition against mailing abortion-related materials remained good law. Project 2025, a playbook written by the influential thinktank the Heritage Foundation, recommends that a future conservative presidential administration use the Comstock Act to block the mailing of abortion pills. Other activists have gone even further, arguing that the Comstock Act can outlaw the mailing of all abortion-related materials.

Because abortion clinics rely on the mail for the drugs and tools they need to do their work, such an interpretation of the Comstock Act would be a de facto ban on all abortion.

The Biden administration has issued guidance arguing that someone only violates the Comstock Act if the sender intends for abortion-related materials “to be used unlawfully”. However, although Joe Biden has focused his re-election campaign on reproductive rights, he has steered clear of addressing the potential return of the Comstock Act.

Smith said that it “seems impossible” that her repeal bill will garner the 60 votes necessary to advance legislation in the Senate. Republicans recently stymied Democratic efforts to establish federal rights to contraception and in vitro fertilization.

But Smith views her bill as a chance to raise awareness of the nationwide consequences of a Comstock Act revival, particularly among voters living in states where abortion rights are currently protected.

“You talk to somebody in Minnesota or Nevada or Pennsylvania, places where people feel secure that they have control over their own decisions and their own potential to decide for themselves about abortion – and then come to find out that Donald Trump has a plan to take away that control that you have, even without a vote or an act of Congress,” Smith said. “It makes it much more real, what the difference is and what the contrast is, what the choices are for you even in those states where state law protects you. That could all change.”

In a New York Times April op-ed where she first aired her plans to repeal the Comstock Act, Smith suggested that she planned to introduce the legislation once the supreme court ruled on a case involving access to mifepristone, one of the two drugs typically used in US medication abortions and a top target of anti-abortion activists. In a unanimous opinion earlier this month, the supreme court ruled on technical grounds to let access to mifepristone remain unchanged for now. Although rightwing justices Clarence Thomas and Samuel Alito brought up the Comstock Act during oral arguments in the case, neither the majority opinion nor a concurrence by Thomas ultimately mentioned the anti-obscenity law.

“The court, in its decision, left the door wide open for future challenges based on Comstock,” Smith said, adding: “There was nothing in the court’s decision that gave me any sense of security.”