democrats-are-trying-to-repeal-a-zombie-law-that-could-ban-abortion-nationwide

Democrats Are Trying to Repeal a Zombie Law That Could Ban Abortion Nationwide

Sen. Tina Smith (D-Minn.), center, is going after the 19th-century Comstock Act before Republicans may try to use it to ban abortion nationwide.Mother Jones; Samuel Corum/Getty

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You may think medication abortion is safe from anti-abortion crusaders’ wrath after the Supreme Court swatted away a challenge to mifepristone—one of the two pills used in a medication abortion—last week.

But abortion pills—which accounted for more than 60 percent of abortions last year, according to the Guttmacher Institute—remain under threats from various forces, including state laws that have sought to restrict access and likely future court challenges. Another likely attack may come from the Comstock Act, a 19th-century anti-obscenity law pioneered by a sex-hating man named Anthony Comstock that remains on the books and bars the mailing of “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”

Some on the right have suggested Comstock be marshaled to ban medication abortion nationwide. Project 2025, an initiative led by dozens of conservative groups and spearheaded by the Heritage Foundation, has said that under a Republican president, the Department of Justice should use Comstock to criminalize “providers and distributors of [abortion] pills.” Jonathan Mitchell, the conservative lawyer behind the Texas abortion ban, went further, suggesting that Comstock could be used to ban all abortions since both medical and procedural abortions require the use of materials sent by mail.

But the effects could still be devastating even if Comstock were just used to restrict abortion pills rather than ban all abortions. Telehealth abortions, in which providers virtually prescribe and mail pills to patients, have been on the rise ever since the FDA approved the mailing of abortion pills in December 2021, most recently accounting for nearly 1 in 5 abortions nationwide. So the marshaling of the Comstock Act to restrict the mailing of abortion pills could make access much more difficult, especially for low-income people, those in rural areas, and teens who may struggle to access in-person clinics.

Now, Democrats are finally trying to fight this so-called zombie law, by introducing legislation in Congress that would repeal the sections that most directly threaten abortion. On Thursday, Sen. Tina Smith (D-Minn.) introduced a bill, dubbed the “Stop Comstock Act” and co-sponsored by more than a dozen other Senate Democrats. She says the measure would repeal the language “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.”

“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.”

“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,” Smith said in a statement.

But the new legislation would leave parts of the law on the books, which lawmakers say the Department of Justice uses to prosecute child sex crimes. A spokesperson for Smith’s office said they worked closely with the DOJ in crafting the bill, and department officials approved the final language, which proposes striking mentions of “indecent” material from the law but leaving references to “obscene” material in place.

Mary Ziegler, a law professor at UC Davis and leading abortion historian who I interviewed about the threats posed by Comstock earlier this year, told me on Thursday she sees the approach to the text of the bill as both a tactical and a political move.

“I think there’s probably a hope that ‘obscene’ is a narrower, more specific term in 2024 than ‘indecent,’” she said, adding, “Pretty clearly the counter-argument Republicans were going to make, or will make, is that ‘the Comstock Act is used in child porn cases.’ So I think this was trying to head off the objection that we need the Comstock Act.”

Rachel Rebouché, dean of the law school at Temple University and a leading reproductive rights scholar, said that while she believes “in an ideal world, the whole thing would be repealed…it makes sense to zero in on the piece that could be otherwise distorted and misapplied to enact a federal abortion ban when that’s never what the Act was.”

Leaders of abortion rights groups including Planned Parenthood Action Fund, the Center for Reproductive Rights, Reproductive Freedom for All, and the Guttmacher Institute all said in statements they support the bill. A DOJ spokesperson did not respond to questions about how often the Comstock Act is used to prosecute child sex crimes. The department issued a memo in December 2022 stating that Comstock “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

A spokesperson for the White House told Mother Jones that officials “support action by Democrats in Congress to protect reproductive freedom and will take a close look at any specific legislation.” The odds of the bill making it to the president’s desk, though, are slim—especially after Senate Republicans blocked a bill that would have protected contraception access at the federal level and blocked another bill that would have protected IVF.

But Rep. Becca Balint (D-Vt.)—who is co-sponsoring the House companion bill alongside Rep. Cori Bush (D-Mo.), Rep. Bonnie Watson Coleman (D-N.J.), Rep. Veronica Escobar (D-Texas), and Rep. Mary Gay Scanlon (D-Pa.)—told me that while she “highly doubts” the bill will get any Republican support in the House, she does not see it as just a symbolic effort. “This is part of really difficult work that we have to do in the next few years to make sure that abortion, reproductive rights writ large, and contraception, as well as IVF are guaranteed to every person across the country country regardless of where they live.”

For both Ziegler and Rebouché, the measure has the potential for some real-life consequences.

“You’ve got to start somewhere,” Rebouché said, adding, “I do think in this election cycle it means something to have your senator, your congressperson, on record saying, ‘Yes, we should uphold this 1873 Act and apply it across the country, even in states that allow people to terminate pregnancies.’”

Ziegler also sees it as an important first step: “I think it’s also probably starting a process—the political will to repeal this thing depends on voters knowing what it is and being disturbed by it.”