This 1873 Law Could Be Used to Ban Abortion. Why Not Repeal It?

Conservative groups believe the United States already has a national abortion ban on the books, just waiting to be enforced: It’s the Comstock Act of 1873, a long-ignored law, largely considered a dead letter. Emboldened by the chaotic, rightward turn in the federal courts and enabled by the overturning of Roe v. Wade, they’ve managed to get their claim that the Comstock Act is enforceable in front of the Supreme Court, where two justices gave these claims credibility. But anti-abortion groups don’t need the Supreme Court this time to get what they want: for the next conservative president to resurrect the law to criminalize abortion even in states where abortion remains legal.

You’d think countering this threat would be a top priority for Democrats, particularly in an election year in which they have reminded us that “abortion is on the ballot.” Conservatives’ arguments for enforcing Comstock may be meritless, but in the two years since the Dobbs decision, major institutions of the American right wing, along with nearly 150 Republican members of Congress, now back this effort. And yet, many Democrats and some of the most recognizable national reproductive rights groups have appeared reluctant to make repealing Comstock a campaign issue. Inside the abortion rights movement and on the Hill, many are mystified.

Last week, reporting from the nonprofit news site NOTUS seemed to shed light on this apparent lack of urgency. Some national reproductive rights groups—Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union—have opposed attempts to repeal Comstock, NOTUS reported: They fear it might somehow backfire and strengthen claims that the Comstock Act is an active national abortion ban.

These groups are familiar with the damage the Comstock Act can do. Passed in 1873, the Comstock Act outlawed an array of “obscene” activities, such as distributing a pamphlet on contraception, or selling abortion-causing drugs, or sharing a sexual poem or photograph, in large part by making it a crime to use the mail to do so. Abortion was a target of the Comstock Act from the beginning, and among the law’s opponents in its heyday were the ACLU and Planned Parenthood founder Margaret Sanger. When the Comstock Act was updated for the internet era by the reliably anti-abortion congressional representative Henry Hyde in 1996, the ACLU challenged the law in federal court, and Planned Parenthood joined the challenge. (The Comstock/Hyde provisions remained in the law, however, where they are to this day; they just haven’t been enforced.)

Big reproductive rights groups were probably hoping such attempts to revive Comstock would not amount to much. They may think that having liberal lawmakers attempt to repeal the act only draws attention to conservative, anti-abortion, and Christian right groups’ schemes, lending them more legitimacy than they deserve. NOTUS’s Oriana Gonzalez described the fate of one of the first efforts to repeal the Comstock Act. After Representative Becca Balint sought co-sponsors for a bill to repeal Comstock in April 2023, the Center for Reproductive Rights, Planned Parenthood, and the ACLU contacted Balint, telling her that bringing such attention to the Comstock Act would raise questions of “whether this is, in fact, a dead law or not,” a source familiar with the conversations told NOTUS. The bill was not introduced. Also in April 2023, Representative Pat Ryan reintroduced his Protecting Reproductive Freedom Act, which in its first iteration had included language to blunt the Comstock Act’s possible impact on medication abortion (though without mentioning the Comstock Act specifically). The reintroduced version had that language removed.

After NOTUS reported the concerns of some Democrats—“there’s certainly a growing frustration on the Hill that outside groups are setting us up for a Dobbs redux,” one House Democratic aide told them—where do these organizations stand on a Comstock Act repeal? “We are working with legislators on congressional action that confirms the Comstock Act is off the books,” Rachana Desai Martin, Center for Reproductive Rights chief government and external affairs officer, stated in an email. Karen Stone, Planned Parenthood Action Fund vice president for government relations and public policy, said they are “part of active and ongoing conversations with coalition partners and members of Congress about legislative action to address the Comstock laws.” The American Civil Liberties Union sent a statement, repeating what had been published in the NOTUS story. The group did not confirm if they currently support the introduction of a Comstock repeal bill.

Wherever these groups are on Comstock, it is far short of an explicit commitment to what some Democrats and abortion advocates want: the introduction of a repeal bill, well before the election. As it stands, both the NOTUS reporting and sources I have heard from independently indicate that the resistance Democrats are getting from the big groups goes like this: By introducing a Comstock repeal bill, which could lead to debate and a vote, that could give weight to legal arguments that the Comstock Act could be enforced.

That’s a valid fear. But it has to be weighed against a much larger risk: that the Comstock Act could actually be enforced. “The risk is that a Trump administration comes in, and a conservative anti-abortion Department of Justice interprets the Comstock Act unlike it’s been interpreted for the past 100 years,” David Cohen, a law professor at Drexel University and co-author of several law review articles on Comstock and abortion, told me this week. That interpretation might go so far, Cohen said, as to claim that the Comstock Act “bans mailing anything that can produce an abortion, so that includes not only pills, it includes supplies and equipment.” If that were to happen, then “since no abortion provider, abortion clinic, or even hospital can get anything that produces an abortion, abortion grinds to a halt everywhere.” Undoubtedly, some would operate in defiance of the law, but they would do so risking criminal charges. They may try to mount a legal challenge to the law itself, but they could be fighting from jail.

This scenario of moral crusaders successfully reviving the Comstock Act may have seemed faintly ridiculous, right until it didn’t. “It’s grown more and more mainstream within the anti-abortion movement,” Cohen said. “I mean, they’re telegraphing exactly what they want to do.” The Christian right law shop Alliance Defending Freedom, which brought the Dobbs case that overturned Roe v. Wade, is now at the forefront of the judicial effort to revive Comstock, arguing that dispensing mifepristone, a drug commonly and safely used in abortions, violates the Comstock Act. They found support for this thinking in a district court ruling in their favor in 2023, and based on oral arguments in March, they seem to have at least two Supreme Court justices considering their claims, too.

NOTUS reports that congressional Democrats are likely waiting for the Supreme Court to issue an opinion in the mifepristone case before introducing any Comstock legislation. But what if the court issues an opinion without mentioning Comstock, even in concurring or dissenting opinions? Representative Mary Gay Scanlon told NOTUS that if that happens, “then, you know, maybe there isn’t quite the same urgency to address it right now.” 

But even if what comes down doesn’t offer any hint that any of the justices consider Comstock to be currently valid, there are other reasons repealing the act would be urgent: what a future President Donald Trump might do if elected in November. One sure way to stop the Department of Justice from enforcing the Comstock Act would be to ensure that doesn’t happen. Biden may be running on “restore Roe,” which he doesn’t have the power to do—but he has more power to block Comstock. Why not run on that?

All too fittingly when it comes to a law meant to silence outspoken advocates of sexual health and freedom, these reported efforts to suppress a Comstock Act repeal have now only succeeded at drawing more attention to the Comstock Act and to the people demanding a repeal. On the day the mifepristone case was argued at the Supreme Court, Representative Cori Bush posted to X, “The Comstock Act must be repealed.… The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.” Her colleague, Representative Balint, whose repeal bill was reportedly slowed, posted on X, “Let’s talk about the Comstock Act.…  I’m ready to fight back and repeal it.” Other Democrats have joined them, including Senator Tina Smith and Minnesota Attorney General Keith Ellison. There are calls for repeal coming from abortion rights and other grassroots groups, such as Abortion Access Front, Demand Justice, and Demand Progress.

The argument for not introducing a repeal bill, then, seems to be that it could somehow compromise a current or future strategy, perhaps to change the law or to challenge the law. But also: If Democrats push for a repeal, that would put them (unusually) out in front of mainstream reproductive right groups. It would mean people outside those big groups were influencing abortion law. That may be alarming to groups who are used to setting the agenda, and used to being turned to by congressional lawmakers. But are they really willing to set aside such an obvious tactic—to hang Comstock on Trump, to cast Biden as the one who can stop him and stop Comstock—just so they can call the shots? “It’s the equivalent of fighting a campaign with one hand tied behind your back,” one anonymous Democratic strategist told NOTUS.

Anti-abortion groups just need Trump to become president. Maybe a repeal bill has little chance in this Congress, but it could be a way to rob anti-abortion groups of that opportunity.