Rep. Cori Bush Becomes 1st Lawmaker to Call to Repeal the Comstock Act

After Supreme Court arguments on Tuesday, the Missouri representative said that Congress needs to repeal the dormant abortion ban.

By Susan Rinkunas  |  March 26, 2024 | 2:58pm
Photo: Shutterstock AbortionPolitics
Rep. Cori Bush Becomes 1st Lawmaker to Call to Repeal the Comstock Act

During today’s Supreme Court hearing in a case that could restrict access to the abortion pill nationwide, the justices sounded skeptical of the group that brought the lawsuit, suggesting that they might eventually dismiss the case. But that doesn’t mean the threat to mifepristone is gone: Justices Samuel Alito and Clarence Thomas gave credence to the conservative legal theory that a Republican president could enforce a dormant law known as the Comstock Act to ban abortion pills, and possibly all procedural abortions, too.

The Comstock Act of 1873 made it a federal crime to mail, possess, or sell “obscene materials,” and it specifically calls out drugs or devices used for abortions. The law has no exceptions, not even if a pregnant person’s life is in danger, and abortion seekers themselves can be charged under it. It wasn’t enforced while Roe v. Wade stood, but activists are trying to bring it back now that Roe is gone.

In the lead-up to the arguments, nearly 150 Republican members of Congress asked the Supreme Court to use the 19th-century zombie law as a justification to roll back telemedicine access to mifepristone, the first drug taken in a medication abortion.

And now, at least one Democratic lawmaker is finally calling to repeal it. Rep. Cori Bush (D-Mo.) posted on Twitter after the hearing that Congress needs to repeal Comstock. We’ve reached out to her office for further comment, including whether she plans to introduce a bill to repeal the law, and we’ll update this post when we hear back. As someone who’s been obsessively tracking comments about Comstock, I believe Bush is the first sitting lawmaker in the post-Dobbs era to say it needs to be repealed.

 

Previously, Sen. Elizabeth Warren (D-Mass.) told Jezebel that Congress would have a responsibility to act if the court revived Comstock in its opinion in the case. But that means waiting until the ruling comes out, which isn’t expected until late June.

Yes, Congress is gridlocked. But enforcing a Victorian-era law would be deeply unpopular and Democrats have a chance to sound the alarm, take action in both chambers, and run on it. Here’s what I wrote at the time of Warren’s comments:

Some abortion legal scholars have speculated that Democrats haven’t moved to repeal the old law ahead of the Supreme Court case because they don’t want to give legitimacy to anti-abortion groups’ legal strategy. But others have argued that activists don’t care if the public thinks Comstock is legitimate—they’ll try to use it regardless. “Anti-abortion extremists are already hard at work pushing their interpretation of the Act into the mainstream discourse. Ignoring those strategies will not stop them from gaining momentum unless those in power call out the severe (and absurd) consequences of enforcing this law,” law professors David S. Cohen, Greer Donley, and Rachel Rebouché wrote in a CNN op-ed. The trio argued that it’s better to put Republican members of Congress on the record with a repeal bill before November so everyone knows whether they want to keep a law that could ban all abortions and was written before women could even vote.

Comstock is effectively a ticking time bomb. The only question is whether Democrats will defuse it. We’re about eight months out from the election, and it seems at least one lawmaker is on board.

Now, rather than seemingly, we definitively have one lawmaker on board. Who’s next?

 
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