A pro-choice protestor dressed as Anthony Comstock outside the Supreme Court on March 26, 2024. Photo: Shutterstock
Minnesota Sen. Tina Smith (D) will introduce a bill on Thursday to repeal parts of a dormant 19th-century law that conservatives want a second Trump administration to weaponize to ban abortion pills, if not all abortions. The Comstock Act is an 1873 anti-vice law that bans sending abortion-related materials in the mail and has criminal penalties. Comstock hasn’t been enforced in nearly 100 years, but it’s cited in the Project 2025 playbook for a second Trump term and right-wing activists have said it could be used to enact a nationwide abortion ban without Congress.
According to the Washington Post, Smith’s legislation would remove the abortion-related sections of Comstock, rather than repealing the entire law. Her office consulted with the Department of Justice before writing the text and portions of Comstock are sometimes used to prosecute cases involving child sexual abuse material. The outlines of the partial repeal bill were first reported last week by Oriana González at NOTUS. (Yes, Comstock also targeted the mailing of contraceptives, but the sections relating to birth control were repealed in 1971.)
“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,” Smith told the Post. “My job is to take that tool away.”
The bill, the Stop Comstock Act, was formally introduced on Thursday afternoon, with 18 co-sponsors including Sens. Elizabeth Warren (D-Mass.) and Catherine Cortez Masto (D-Nev.). Rep. Becca Balint (D-Vt.) will introduce a companion bill in the House. “We have to take Republicans at their word that they want a federal ban,” Balint said. In March, Rep. Cori Bush (D-Mo.) became the first lawmaker since the Dobbs decision to call for repealing Comstock and her office told Jezebel that she is a co-lead sponsor on the House bill.
Smith indicated this step was coming after the Supreme Court released its decision in the abortion pill case last week. The court said the anti-abortion plaintiffs didn’t have legal grounds to sue over mifepristone, which Smith called “a reprieve, not a vindication.” (There are other challengers ready to start the case over again.) Justices Samuel Alito and Clarence Thomas asked about enforcing the law during arguments and while neither mentioned Comstock in the opinion, the threat still remains. Smith wrote in a statement that she would move to repeal the law because it was important to “remove any tool Donald Trump and extremist Republicans would try to misuse to enact a backdoor national abortion ban.”
A future Republican administration will try to use the Comstock Act — an unconstitutionally vague law from a time before women even had the right to vote — to ban abortion nationwide.
I’m introducing the Stop Comstock Act to protect what reproductive rights we have left. pic.twitter.com/8youVa6YwL
Smith underscored that the court’s recent ruling doesn’t mean abortion pills are safe. “There was nothing in the way that they decided that case that reassured us or said, ‘Oh, okay, they see Comstock as unconstitutional,’” she said. “The door is left open.”
The Post reports that the repeal effort has support from major reproductive rights groups Planned Parenthood, the American Civil Liberties Union, and Reproductive Freedom for All. But incredibly, the outlet says, without citing sources, that “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.” This is peak DC brain: Democrats cannot “protect abortion access” if Trump wins in November, and some people may not turn out to vote unless they know he could ban abortion without passing a single new law.
Democrats should force votes on this bill to put Republicans on record, like they have on legislation to protect birth control and IVF—unsurprisingly, the GOP has blocked both. But make no mistake, this bill won’t pass unless Democrats choose to blow up the 60-vote Senate filibuster for it, which is highly unlikely. It’s a bill to highlight the stakes of a second Trump presidency, which are so much higher now that the federal protections of Roe v. Wade are gone.
We nonetheless await to see how Republicans contort themselves to defend a criminal abortion law passed before women and Black people could vote.
