Democrats in the House and Senate introduced legislation Thursday to overhaul a long-dormant law that they worry could be used by a future Trump administration to severely limit abortion or effectively ban it completely.
Led by Sen. Tina Smith (D-Minn.), the legislation would repeal the abortion provisions of the Comstock Act, an 1873 federal law that bans abortion-related materials from being sent through the mail.
“The Comstock Act is a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history. But extremist Republicans and Trump judges have seized upon the idea of misusing Comstock to bypass Congress and strip women nationwide of their reproductive freedoms,” Smith said in a statement.
"It is too dangerous to leave this law on the books; we cannot allow MAGA judges and politicians to control the lives of American women,” she added.
The 151-year-old law explicitly prohibits the shipment of “every article or thing designed, adapted or intended for producing abortion.”
The law’s interpretation has been narrowed by Congress over the years, and some experts say it’s been rendered obsolete.
But now that the Supreme Court's landmark Roe v. Wade ruling has been overturned, anti-abortion activists see an opening.
These activists, working with former Trump administration officials, have been laying the groundwork for the next Republican administration to apply the Comstock Act to prevent the mailing of any abortion drugs and materials, effectively banning all abortions without needing Congress to act.
During oral arguments at the Supreme Court challenging efforts to expand access to the abortion pill mifepristone, conservative Justices Clarence Thomas and Samuel Alito repeatedly invoked the Comstock Act.
Alito questioned why the Food and Drug Administration (FDA) had not contended with the law in its decisions on expanding access to mifepristone through the mail.
“This is a prominent provision; it’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it,” Alito said.
A memo from the Biden administration's Justice Department in 2022 interpreted the law as one that prohibits the mailing of items only when the person mailing them knows they’re going to be used for unlawful purposes.
In addition, lower courts have also said the Comstock Act only applies to unlawful abortions and doesn’t prohibit the distribution of medication or other items intended to be used for lawful purposes.
But Democrats and the Biden campaign are calling attention to how a Trump administration and congressional Republicans could use the Comstock Act as part of their broader focus on reproductive rights ahead of the November election.
“Trump’s allies have said that the 150-year-old Comstock Act gives Trump the authority to effectively ban medication abortion nationwide, even in states where abortion is currently legal,” Morgan Mohr, the Biden campaign’s senior advisor for reproductive rights, said in a recent memo to reporters.
“According to Trump advisors’ radical legal theory, they can use Comstock to prosecute anyone who uses the internet or U.S. mail to facilitate an abortion – and they can even prosecute women and health care providers,” Mohr wrote.
It is unlikely a Comstock repeal bill would get very far in the current divided Congress, especially since Republicans in the Senate have blocked recent bills to protect access to contraception and in-vitro fertilization. But Democrats are committed to elevating abortion as an election year issue.
“Congressional Republicans and their allies in statehouses 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 the freedom to make decisions about their own bodies,” said Rep. Becca Balint (D-Vt.), who introduced a companion bill in the House.
Balint was joined by Reps. Corrie Bush (Mo.), Veronica Escobar (Texas), Mary Scanlon (Penn.) and Bonnie Watson Coleman (N.J.).
The effort by Democrats is endorsed by major advocacy groups, including the Planned Parenthood Federation of America, the ACLU, the Center for Reproductive Rights and Reproductive Freedom for All, among others.
The last time Democrats introduced any legislation related to the Comstock Act was in 1997, when then-Rep. Barney Frank (Mass.) led the Comstock Cleanup Act of 1997, which would have repealed the abortion provision. The bill never advanced.
Abortion rights groups had been hesitant to promote legislation related to the Comstock Act until the Supreme Court decided the mifepristone case.
But the justices earlier this month unanimously dismissed the challenge on procedural grounds, opening the door for the bill’s introduction.
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