Democrats seek to repeal Comstock abortion rule, fearing Trump crackdown
The Comstock Act, an 1873 law that bans abortion-related materials from being sent through the mail, could be used by the GOP to restrict abortion nationwide.
Democrats are seeking to overhaul an 1873 federal law that bans abortion-related materials from being sent through the mail, worried that a future Trump administration could invoke the Comstock Act to crack down on abortion access or effectively ban the procedure altogether.
“There is a very clear, well-organized plan afoot by the MAGA Republicans to use Comstock as a tool to ban medication abortion, and potentially all abortions,” said Sen. Tina Smith (D-Minn.), who on Thursday plans to introduce legislation to repeal the Comstock Act’s abortion provisions. “My job is to take that tool away.”
Democrats’ push to defang the 151-year-old law comes less than five months before a presidential election in which reproductive rights appear destined to play a defining role. But the party’s mixed reaction to the plan underscores the balancing act between policy aspirations and political realities.
Sens. Elizabeth Warren (D-Mass.), Catherine Cortez Masto (D-Nev.) and other Democrats have signed on to the legislation, according to Smith’s office. Rep. Becca Balint (D-Vt.) will introduce companion legislation in the House, and in an interview she said she believed House Democratic leaders support the effort.
“I’m not going to take a watch-and-see, laissez-faire attitude,” Balint said. “We can and we have to take Republicans at their word that they want a federal ban.”
The campaign is receiving support from major advocacy groups, including Planned Parenthood Federation of America, the American Civil Liberties Union and Reproductive Freedom for All. The legislation, which Smith’s office crafted after consulting with the Justice Department, would preserve aspects of the law that allow officials to crack down on child pornography.
Not all Democrats agree that attempting to repeal the Comstock Act’s abortion provisions should be an election-year priority, worried it will distract from the party’s existing efforts to protect abortion access and to focus voters’ attention on reproductive health issues. While President Biden has heavily campaigned on Republicans’ efforts to limit abortion, he has not endorsed repealing Comstock and has avoided focusing on the law.
Some advocates predict that the legislation is doomed in a divided Congress, highlighting the defeats of recent bills to protect access to contraception and in vitro fertilization.
The effort comes amid legal uncertainty about whether the 151-year-old Comstock Act provisions apply today. Many antiabortion advocates seized on the law soon after Roe v. Wade was overturned two years ago — arguing that, without the constitutional right to abortion, the long-dormant act now makes it illegal for anyone to mail abortion pills, even in states where abortion remains legal.
Supreme Court Justices Samuel A. Alito Jr. and Clarence Thomas drew further attention to Comstock this year, stressing the importance of the law during oral arguments in a challenge to mifepristone, a key abortion drug.
“It’s not some obscure subsection of a complicated obscure law,” Alito said in oral arguments in March, referring to Comstock as a “prominent provision.”
The Biden administration has maintained that the law applies only when the person who mails abortion pills and other restricted items intends for the recipient to “use them unlawfully,” a position echoed by Democratic leaders in Congress. But the Biden reelection campaign and its allies have repeatedly drawn attention to the Comstock Act and its potential to shape abortion access, seeking to focus voters on the implications of November’s election.
“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,” Morgan Mohr, the Biden campaign’s senior adviser for reproductive rights, wrote in a memo shared with reporters last week.
It is not clear whether Donald Trump would seek to invoke Comstock if elected. As president, Trump nominated three Supreme Court justices who ruled to overturn Roe, reinstated restrictions on funding of abortion overseas and took other steps that led activists to hail him as the most antiabortion president in history.
But as a candidate this year, Trump has backed away from embracing the most restrictive abortion measures, citing polls that many Americans do not support a national ban on abortion and saying Republicans must find a middle ground, angering some of his supporters in the antiabortion movement.
Asked about the Comstock Act in an April interview by Time magazine, Trump said it was a “very important issue” and promised to issue a “big statement” within the next two weeks.
Trump has yet to issue that statement on Comstock, and his campaign declined to comment about where he stands on the law.
Leading antiabortion advocates and conservative groups have called on Trump to immediately enforce the law if he wins in November.
Lawyer Jonathan Mitchell and activist Mark Lee Dickson — antiabortion leaders behind the novel Texas abortion ban that took effect months before Roe fell — have endeavored to pass local ordinances enforcing Comstock in rural, conservative towns in New Mexico, a Democrat-led state with some of the most permissive abortion laws in the country.
“The Comstock Act cannot be ignored,” Dickson said. “Every law regarding abortion in New Mexico must work within [its] confines.”
The Comstock Act was enacted amid a 19th-century crackdown on abortion and represented the signature work of an anti-vice crusader who sought to impose his moral and legal rubric on the nation. The law banned mailing “indecent” materials such as pornography and sex toys but also included provisions limiting access to abortion and contraception drugs sent by mail.
The law has not been applied for nearly a century, according to legal experts. Its namesake, Anthony Comstock, expressly supported doctors performing some abortions, according to an interview he gave before his death that was reviewed by The Washington Post.
Congressional Democrats in the 1990s sought to overhaul the Comstock Act, but efforts to amend its abortion provisions failed, and lawmakers pivoted to other priorities.
“No one knew we were gonna roll back the clock,” former congresswoman Pat Schroeder (D-Colo.), who helped lead the party’s Comstock repeal efforts in the 1990s, said in a 2022 interview with The Post. Schroeder died last year
Some abortion rights advocates and legal experts have called for a full repeal of the law, saying a partial repeal of its abortion provisions would not be sufficient.
Smith said she first learned about the Comstock Act about 20 years ago, when she was a Planned Parenthood executive in Minnesota, and the law remained on her mind amid Trump-era crackdowns on abortion access. The rise of interest in using Comstock to limit abortion access prompted Smith to write a New York Times op-ed in April about her plans to repeal the law.
Balint said she considered similar legislation last year but shelved it as fellow Democrats and advocates worried about the unintended consequences of calling attention to Comstock. But the situation has changed, given that Trump’s allies are “clearly stating that they plan to use it in the next Republican administration,” she said.
Balint said she expects much of the House Democratic caucus to endorse her bill. But Senate leadership has yet to endorse Smith’s bill.
Sen. Patty Murray (D-Wash.), the No. 3 Senate Democrat and leader of the party’s congressional efforts to protect abortion access, warned Tuesday at a news conference that Trump and his allies “want to try to misuse the 1873 Comstock Act … as a backdoor way to ban abortion nationwide.”
Asked whether she would support repeal of the Comstock Act’s abortion provisions, Murray was noncommittal.
“I think we’re all concerned about what could happen in a Trump administration, but at this point I’ve not seen the legislation,” Murray said, pledging to “review it, but our Department of Justice has said [Comstock] does not apply.”
If Trump wins, and decides to enforce Comstock, his administration could interpret the statute in different ways, said Greer Donley, a University of Pittsburgh law professor who focuses on abortion policy.
The broadest interpretation, she said, would prohibit mailing of all medications and tools used to perform abortions, including instruments for in-clinic procedures — essentially banning abortion nationwide.
“This could make abortion impossible to access everywhere in the U.S.,” Donley said.
A slightly narrower interpretation could allow surgical procedures to continue, but ban mailing of pills, she said — a move that would disproportionately affect women in rural areas and those in states with abortion bans, who have been relying heavily on telemedicine.
Alito and Thomas’s recent comments during oral arguments on medication abortion suggest those justices are open to arguments about applying Comstock, Donley said.
“They both signaled their initial impression that Comstock challenges are legitimate — that Comstock is still good law,” Donley said. “To me, this was about welcoming future lawsuits.”
The Supreme Court’s ruling last week in the medication abortion case, which maintained the status quo, represented “a reprieve, but not a vindication,” Smith said. The senator noted that the court’s decision threw out the challenge on procedural grounds but did not address underlying arguments about whether Comstock applied to sending abortion-related materials through the mail.
“There was nothing in the way that they decided that case that reassured us or said, ‘Oh, okay, they see Comstock as unconstitutional,’” Smith said. “The door is left open.”
By Dan Diamond
Dan Diamond is a national health reporter for The Washington Post. He joined The Post in 2021 after five years at Politico, where he won a George Polk award for investigating the Trump administration's response to the coronavirus pandemic.
Caroline Kitchener is a reporter covering abortion at The Washington Post. She won the 2023 Pulitzer Prize for National Reporting.
