Sen. Elizabeth Warren Fires Warning Shot at Supreme Court Over Zombie Law That Could Ban Abortion

Warren told Jezebel that if the court makes “an extreme decision” to revive the Comstock Act in the abortion pill case, Congress has "a responsibility" to act.

Sen. Elizabeth Warren Fires Warning Shot at Supreme Court Over Zombie Law That Could Ban Abortion

On Thursday, nearly 150 members of Congress asked the Supreme Court to revive a 19th-century zombie law to ban sending the abortion drug mifepristone through the mail—even in states where abortion is legal. Enforcing the law, the Comstock Act of 1873, is part of a playbook conservative groups are preparing for Donald Trump should he win in November. The groups, which are part of a coalition known as Project 2025, want the next Republican president to use Comstock to ban not just medication abortion, but all abortion procedures nationwide

The Supreme Court will hear a case on March 26 about whether to reimpose outdated restrictions on the abortion pill, with a decision expected in late June. The plaintiffs in the case are represented by the notorious Christian legal firm Alliance Defending Freedom, which also asked the court to resuscitate the Comstock Act. Now, Sen. Elizabeth Warren (D-Mass.) hinted that she’s prepared to defang the law.

The Comstock Act made it a federal crime to mail, possess, or sell “obscene materials,” including items 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. One brief in the Supreme Court case claims Comstock also applies to “devices or equipment” used for abortions, an expansive reading that could target procedural abortions, as any clinic that gets supplies shipped across state lines could be found in violation of the law. (We should note that clinicians also prescribe mifepristone to people experiencing miscarriages.) 

“Donald Trump and Republican extremists aren’t shy about their plan to use the dormant Comstock Act of 1873 to ban abortion nationwide. No matter what Trump and Project 2025 might say, the Department of Justice has made clear that Comstock does not prevent the mailing of medication abortion,” Warren told Jezebel through a spokesperson, referring to a DOJ memo from December 2022. “If the Supreme Court makes an extreme decision that finds otherwise, then Congress has a responsibility to protect Americans’ reproductive health care and respond.”

What would a response look like? The current Congress could move to amend the statute or repeal it entirely. In 1971, lawmakers repealed the portions related to birth control and, in 1996, a bipartisan group of House members tried and failed to repeal the provision about mailing abortion materials. The bill, the Comstock Cleanup Act, had 58 co-sponsors, including seven Republicans and one Independent, and it was introduced four years before the Food and Drug Administration approved mifepristone, and well before states started passing abortion bans as part of a strategy to overturn Roe

Warren, a former law professor, is one of the few, if any, Democratic lawmakers sounding the alarm on the threat Comstock poses in all 50 states. In January, she referenced the plan to use the 150-year-old law during a floor speech on the anniversary of Roe v. Wade:

Republicans know that the majority of Americans oppose overturning Roe, but they aren’t letting up. Instead, overturning Roe isn’t enough for them—they want more. They have introduced legislation to ban abortion nationwide, and if they can’t pass it through Congress, they’ll use a Republican president to dust off a 19th century “anti-obscenity” law instead. 

That night, she appeared on MSNBC’s The Last Word With Lawrence O’Donnell, where O’Donnell said he was astounded that Comstock was still on the books. Warren shook her head in acknowledgment of the absurdity and said, “Now that Roe v. Wade has been removed by the Supreme Court, the Republicans are moving forward on every front. They figured out how Donald Trump can do this alone.” She then brought up the abortion pill case that could restrict access nationwide before zooming back out to conservatives’ longer-term goal: “You may be living in a state that protects abortion, right, but the Republicans are coming for you as well. They’re coming for everybody—no matter what state they’re in—to try to get a nationwide abortion ban in place.” In a February interview with MassLive, Warren reiterated that Trump could revive the ”old Comstock law[s]” and “all by himself put an abortion ban in place all across the country.”

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.

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