U.S. Senator Tina Smith Unveils Legislation to Repeal the Comstock Act

WASHINGTON, D.C. [6/20/24] —Today, U.S. Senator Tina Smith (D-Minn.) introduced a bill to repeal an arcane 1873 law, called the Comstock Act, that Republicans and anti-choice extremists want to misuse to ban abortion nationwide. Comstock has been cited recently by Supreme Court Justices Samuel Alito and Clarence Thomas in oral arguments during the Alliance for Hippocratic Medicine v. FDA and invoked in Project 2025 – broadly seen as a roadmap for a future Trump administration – as a way for an extremist, anti-choice administration to use unilateral executive action to effectively ban abortion nationwide. 

“The Comstock Act is a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history. But extremist Republicans and Trump judges have seized upon the idea of misusing Comstock to bypass Congress and strip women nationwide of their reproductive freedoms. When MAGA Republicans say they intend to use the Comstock Act to control women’s decisions and enact a backdoor national abortion ban, we should believe them. Now that Trump has overturned Roe, a future Republican administration could try to misapply this 150-year-old Comstock law to deny American women their rights, even in states where abortion rights are protected by state law.

“This is why I’m introducing legislation to repeal Comstock. It is too dangerous to leave this law on the books; we cannot allow MAGA judges and politicians to control the lives of American women,” said Senator Smith.

The Comstock laws are a set of 1800s laws meant to ban the mailing or shipping of every obscene, lewd, indecent, article, matter, thing or device, with the goal of restricting abortion, contraceptives, and even love letters. A future administration hostile to sexual and reproductive health care will willfully misapply these unconstitutionally vague laws to impose a ban on abortion nationwide, even without any Congressional action.

The Stop Comstock Act would repeal language in the Comstock Laws that could be used by an anti-abortion administration to ban the mailing of mifepristone and other drugs used in medication abortions, instruments and equipment used in abortions, and educational material related to sexual health. Medication abortion is how nearly 60% of abortions take place in this country today. It is the most common form of abortion in the United States.

Rep. Becca Balint will be introducing the House companion bill, with co-leads Reps. Bush, Escobar, Scanlon, and Watson Coleman. The legislation is cosponsored by Senators Elizabeth Warren (D-MA), Catherine Cortez-Masto (D-NV), Sheldon Whitehouse (D-RI), Debbie Stabenow (D-MI), Jeanne Shaheen (D-NH), Jeff Merkley (D-OR), Amy Klobuchar (D-MN), Tammy Duckworth (D-IL), Mazie Hirono (D-HI), John Fetterman (D-PA), Cory Booker, (D-NJ), Peter Welch (D-VT), Alex Padilla (D-CA), Richard Blumenthal (D-CT), Kirsten Gillibrand (D-NY), Maggie Hassan (D-NH), Laphonza Butler (D-CA) and Brian Schatz (D-HI).

The legislation has been endorsed by the Planned Parenthood Federation of America, the American Civil Liberties Union, Physicians for Reproductive Health, the Center for Reproductive Rights, National Women’s Law Center, Reproductive Freedom for All (formerly NARAL Pro-Choice America), Take Back the Court Action Fund, Healthcare Across Borders, All* Above All, Power to Decide, Expanding Medication Abortion Access (EMAA), Power to Decide, The Guttmacher Institute, Indivisible and National Council of Jewish Women.

You can access a summary of the bill here.

Alexis McGill Johnson, President and CEO, Planned Parenthood Action Fund: “Abortion opponents have made it clear: they’ll stop at nothing to ban abortion nationwide. As they’ve shown us, they want to control people’s bodies, lives, and futures, and they’re willing to misuse the Comstock laws to try to ban abortion entirely and restrict other health care — even though for decades, the courts, Congress, and the Department of Justice have made clear that position is wrong. Planned Parenthood Action Fund will continue to raise the alarm about efforts to ban abortion and restrict sexual and reproductive health care.”

Mini Timmaraju, Reproductive Freedom for All (formerly NARAL Pro-Choice America) President and CEO: “MAGA Republicans have detailed their plans to block all abortion access — with or without the support of Congress and the courts — if they win power this November by enforcing a radical and baseless interpretation of the Comstock laws. Their Project 2025 provides a lengthy and destructive playbook that Trump could begin implementing on Day One of his administration. We’re grateful to Sen. Smith, Cortez Masto and Warren for their crucial work to ensure anti-abortion extremists’ dystopian vision never becomes a reality.”

“The Comstock Act has long been considered obsolete, but anti-abortion extremists are now threatening to use it to push for a national abortion ban.  While we would expect their efforts to be rejected by the courts, they could still sow chaos for abortion access nationwide,” said Katie O’Connor, Director of Federal Abortion Policy at the National Women’s Law Center.  “This law, a relic from the 19th century, was originally passed to enforce a specific view of morality rooted in racist, sexist, homophobic, and other discriminatory beliefs. It has no place in our modern laws, and we commend Senator Smith and other cosponsors for introducing legislation to prevent its misuse by anti-abortion extremists to ban abortion across the country.”

Kirstin Moore, Director, EMAA Project: “We are thrilled to see this legislative leadership by Senator Smith. The Comstock Act must be modernized so MAGA Republicans can’t use this 150-year-old law to ban abortion access in all 50 states.”

Dr. Jamila Perritt, President & CEO of Physicians for Reproductive Health: “As we continue to feel and experience the devastating impact of abortion bans and restrictions across the country, this legislation is one important step to neutralizing increasingly dangerous and troubling attacks on care, including the potential threats of the Comstock Act. Comstock was an extreme law when it was written. It is not applicable to the current landscape and health care needs of our communities. Health care providers should not be at risk for criminalization for doing their jobs – providing essential medical care to those who need it. Our community deserves laws that reflects the lived experiences of people and families today, and that will always include access to full spectrum reproductive health care, like abortion care.”

Rachana Desai Martin, Center for Reproductive Rights’ Chief Government and External Relations Officer: “The end goal of the anti-abortion movement has always been clear: they want to ban all abortion in the United States. Now, with Roe v. Wade overturned, they are promising to weaponize the Comstock Act – an outdated anti-sex statute from the 1800’s — to essentially ban abortion nationwide if they get a President who is willing. This backdoor ban on abortion could be forced through without the approval of Congress or the American public, who would never support a national ban. That may sound unthinkable to most people, but so did the overturning of Roe v. Wade. This potential misuse of the Comstock Act is a very real threat that we must take seriously.”