I Hope to Repeal an Arcane Law That Could Be Misused to Ban Abortion Nationwide

A long discredited, arcane 150-year-old law is back in the news in 2024, and that should terrify anyone who supports reproductive freedom. Last week at the Supreme Court, the Comstock Act of 1873 was referenced on three separate occasions during oral arguments in a case dealing with access to mifepristone, one of two drugs typically used in medication abortions.

Anti-abortion activists like to bring up the Comstock Act because one of its clauses prohibits sending through the mail “every article, instrument, substance, drug, medicine or thing” that could possibly lead to an abortion. Even if the Supreme Court doesn’t take the bait, a newly re-elected President Trump could order his Department of Justice to start interpreting that line to mean that it is illegal to mail mifepristone — a safe, effective, Food and Drug Administration-approved drug — to doctors and pharmacies, as well as to patients directly. The same could go for medical supplies that are used in performing surgical abortions. That could effectively make abortion impossible to access even in places like Minnesota, which has affirmatively protected a woman’s right to choose by passing reproductive freedom laws.

In response, I’m prepared to fight back — including by introducing legislation to take away the Comstock Act as a tool to limit reproductive freedom.

Let me take a step back and explain how ridiculous it is that we’re even talking about this legislative relic today. The Comstock Act hasn’t been broadly enforced since the 1930s. The Biden administration considers it utterly irrelevant. Many legal experts consider it dead letter law. And once you know its back story, it becomes clear why no one has paid much attention to it in nearly a century.

Back in the 1860s, a former Civil War soldier from rural Connecticut named Anthony Comstock moved to New York City for work. He was shocked and appalled by what he found. Advertisements for contraception! Open discussions of sexual health! It all struck Comstock as terribly lewd and anti-Christian.

So he made it his mission to clean up society, creating the loftily named New York Society for the Suppression of Vice and gathering evidence for police raids on places that distributed material he thought was obscene or promoted indecent living. In the early 1870s he took his crusade to Washington, lobbying for federal legislation that would empower the post office to search for and seize anything in the mail that met Comstock’s criteria for being “obscene,” “lewd” or just plain “filthy.” Morality, as determined by Comstock, would be the law of the land, and Comstock himself would be its enforcer, appointed by Congress as a special agent of the post office.