Congress Needs to Repeal This Zombie 1873 Abortion Ban Before It Blows Up in Our Faces

"If it were to become the law, it would be absolutely catastrophic," an ACLU lawyer said of the Comstock Act, which the Supreme Court could resuscitate.

Congress Needs to Repeal This Zombie 1873 Abortion Ban Before It Blows Up in Our Faces
Anthony Comstock Photo:Getty (Getty Images)

There is, somehow, a 150-year-old federal law still on the books that could ban abortion nationwide, and Congress needs to move to repeal it immediately. While the zombie law, the Comstock Act of 1873, hasn’t been enforced since before Roe v. Wade, it’s now a live issue thanks to the abortion pill lawsuit. Some anti-abortion activists argue Comstock is still in effect and that, as a federal statute, it trumps state laws protecting abortion. If a judge agreed, that could result in a nationwide ban on abortion—whether via pill or procedure.

When an appeals court weighed in on the case after midnight on Thursday, they didn’t just claim that people should have to make three trips to a clinic to get abortion pills—they also claimed that the Comstock Act bans the mailing of any item used for abortions.

On a press call Thursday, Jennifer Dalven of the ACLU’s Reproductive Freedom Project, said the Fifth Circuit Court of Appeals suggesting that the Comstock Act bans the mailing of anything used for an abortion was frightening and lawless.

“It’s absolutely bonkers, I think is a technical legal term for this,” Dalven. “The court seems to suggest that it’s looking for a way to uphold a law from the 1800s, part of state-enforced morality laws, and try to use that potentially to advance their effort to ban abortion nationwide—not just the mailing of pills, as Judge [Matthew] Kacsmaryk’s decision suggested—but something even broader.”

Dalven said that’s “completely wrong” on the law, noting a legal opinion the Department of Justice’s Office of Legal Council released in January that cleared the U.S. Postal Service to deliver packages that may contain abortion pills, even in states with abortion bans. She noted that the appeals court didn’t actually issue a ruling on Comstock, but the language was dangerous nonetheless because it seemed to suggest where the court could go in the future. “If it were to become the law, it would be absolutely catastrophic,” Dalven said.

University of Texas law professor Elizabeth Sepper noted on Twitter that this expansive reading of the law could result in a ban on mailing medications like misoprostol, a second drug often used in medication abortion. Misoprostol can also be used on its own to end a pregnancy, and though it isn’t FDA-approved for that use, some providers have off-label miso as a backup plan. Still, if the Supreme Court interprets Comstock the way the Fifth Circuit did, even misoprostol-only abortions would be threatened.

As Greer Donley, associate professor at the University of Pittsburgh Law School, told Jezebel in December, “Comstock is really terrifying,” because any clinic that gets supplies shipped across state lines could be found in violation of the law. “If anyone were to find that that law is still active, that ends abortion nationwide—all abortion.”

Declaring Comstock active is the equivalent of a grenade that could blow up abortion access. These judges have already pulled out the pin and are just holding the thing together and lobbing it at the Supreme Court, which will now consider an emergency appeal from the Food and Drug Administration. The grenade was placed in the suit by Alliance Defending Freedom, the Christian legal organization that filed the complaint back in November. (Fun fact, Missouri Sen. Josh Hawley’s wife, Erin, is an ADF lawyer on the case.)

Now back to the origins of the law and the role Congress needs to play here.

Anthony Comstock pushed for the law, which criminalized the mailing, possession, or sale of “obscene” materials, including not only lewd books, but also birth control and abortion drugs and devices, and information about them. The parts about contraception were stripped out in 1971, but Congress never repealed the rest because it apparently wasn’t a priority.

It’s a priority now, and has been since the day the court overturned Roe. Democrats need to introduce legislation to repeal the entire Comstock Act, or at the very least, every reference to abortion.

To be clear, it’s sadly unlikely that a Comstock repeal bill would pass the Republican-controlled House or the 50-50 Senate. But the point would be to make every single one of our 435 members of Congress go on record about whether they support a nationwide abortion ban. Even then it might only help with winning the 2024 election, not from stopping the 6-3 conservative supermajority on the Supreme Court from sending us all back to the 19th century.

Historians and reproductive rights activists have been talking about the need to repeal Comstock for decades—kind of like how the same people were pushing the need to codify Roe into federal law before it was too late. I would hope politicians would listen to them this time, but hope is a finite resource and I’m running out of it.

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