‘The Washington Post’ Agrees With Jezebel: The Comstock Act Needs to Go

Many people are saying that Congress must repeal this absurd 1873 law.

By Susan Rinkunas  |  April 3, 2024 | 3:26pm
AbortionPolitics
‘The Washington Post’ Agrees With Jezebel: The Comstock Act Needs to Go
A pro-choice protestor dressed as Anthony Comstock outside the Supreme Court on March 26, 2024. Photo: Shutterstock

Jezebel is the country’s pre-eminent hater of the Comstock Act, a 19th-century anti-obscenity law that a second Trump administration could weaponize to ban all abortions nationwide. And now a huge newspaper and a U.S. Senator have joined us—and one bold House member—in saying that Comstock needs to be repealed.

News outlets have covered the conservative scheme to get Donald Trump to enforce Comstock if he wins, but the 150-year-old law got a huge amount of attention last week during Supreme Court arguments in a case about the abortion pill, mifepristone. That’s because both Justices Samuel Alito and Clarence Thomas sounded like they believed Comstock could be enforced to ban the mailing of abortion pills to patients or providers.

On Tuesday, the Washington Post editorial board wrote in an op-ed that Democrats need to get rid of Comstock now that Alito and Thomas referenced it, and also because of the playbook that activists from the Project 2025 coalition are writing for Trump. They noted that even though the majority of Justices sounded like they’d dismiss the abortion pill case, the threat remains and that “this obsolete, misogynist law needs to be wiped off the statute books.”

The editorial board wrote that Democrats should take up a repeal effort before the election, despite the fact that they don’t control the House:

Democrats should lead that effort while they still control the Senate and the White House. And they should do so despite understandable fears that trying, and failing, to repeal the law could paradoxically reinforce its validity. It’s a fight worth having. Let House Republicans refuse to consider a bill, or the Senate GOP filibuster one, and explain to voters why they oppose eliminating even the theoretical chance people could get up to five years in prison (the maximum penalty for a first offense) for shipping mifepristone.

We agree!

Also on Tuesday, Sen. Tina Smith (D-Minn.) wrote in a New York Times op-ed that she wants to repeal Comstock and is talking with colleagues to build support for legislation to wipe it off the books. She also brought up the Comstock questioning in the Supreme Court arguments and Project 2025, writing that “common sense dictates that we stop this outrageous backdoor ploy to eliminate abortion access in its tracks.”

Smith, a former Planned Parenthood executive, said that repealing Comstock is an urgent task but then implied she wouldn’t introduce a bill until after the Supreme Court issues its ruling, which isn’t expected until late June. “Legislation to repeal Comstock could take many forms, and we need to do it the right way,” she wrote. “Once the Supreme Court has had its say (and many legal analysts speculate that the mifepristone case heard last week should be thrown out on procedural grounds, and may well be), I’ll be ready to have mine.” (The news outlet NOTUS reported in late March that Smith would wait for a ruling.) Personally, I think she should introduce the bill as soon as it’s vetted and has some co-sponsors, a process that I hope doesn’t take three months.

Smith isn’t the first member of Congress to unequivocally say the dusty old law should go: Last week, Rep. Cori Bush (D-Mo.) became the first lawmaker since the Dobbs decision to call for repealing Comstock, citing Alito’s openness to the law.

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 stopped short of calling for repeal—and, again, her position would mean waiting until the ruling comes out.

Anyway, other Democrats, it’s time to join the anti-Comstock party.

 
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