Democrats target 150-year-old ‘zombie law,’ warning GOP could use it to ban abortion

WASHINGTON — A group of Senate Democrats is pushing to repeal a 150-year-old law that reproductive rights advocates fear could be used to further restrict access to abortion, specifically abortion pills.

The Comstock Act of 1873 prohibits sending obscene, lewd, or abortion-producing materials through the mail, although it has not been widely enforced for decades. As the abortion pill mifepristone faces legal challenges, its supporters fear that the Comstock Act could be used by a future president as a tool to restrict access to abortion across the country, including in states where it is legal.

“The Comstock Act is a 150-year-old zombie law banning abortion and has long been consigned to the dustbin of history,” Sen. Tina Smith, D-Minn., the bill’s lead, said in a statement announcing the legislative push. . “Now that Trump has overturned Roe, a future Republican administration could misapply this 150-year-old Comstock law to deny American women their rights, even in states where the right to abortion is protected by state law.”

Although Planned Parenthood has approved the new legislation, there has been reluctance on the part of some parts of the reproductive rights movement and other elected Democrats to delve too deeply into repealing the Comstock Act for fear of legitimizing it.

Senate Majority Leader Chuck Schumer, D-N.Y., had no say and deflected when asked by NBC News about taking action against Comstock last week; instead, he pointed to steps his party has taken on other related issues.

“Look,” Schumer said, “we made progress last week on contraception, this week on in vitro fertilization, and you’ll be hearing more from us about reproductive rights in the near future.”

The issue could become a new frontier for Democrats as they pursue a campaign of symbolic legislation to protect reproductive rights, using widely expected Republican opposition to sharpen the contrast for voters ahead of the 2024 elections.

Some Democrats have clearly warned that the Comstock Act could be exploited if Congress does not act.

“They want to try to misuse the Comstock Act of 1873, which the Justice Department has repeatedly made clear does not apply, as a backdoor way to ban abortion nationwide, criminally prosecuting people for sending abortion drugs — and potentially even the medical supplies needed for abortion. abortion care,” Sen. Patty Murray, D-Wash., chairwoman of the Appropriations Committee, told reporters last week.

The Biden administration has rejected the view that the law could restrict abortion rights. The Department of Justice he wrote in December 2022 that the Comstock Act “does not prohibit the shipment of certain drugs that may be used to perform abortions when the sender does not intend for the recipient of the drugs to use them illegally.”

Abortion opponents have cited the law in litigation, arguing that the FDA ran afoul of the Comstock Act by greenlighting the pill and distributing it. This includes a mifepristone case that the Supreme Court dismissed last week on the grounds that the plaintiffs lacked standing.

The Heritage Foundation, a conservative think tank, said in its “Project 2025” vision about how the Trump administration should determine that the Comstock Act should be used to “enforce criminal prohibitions” regarding mail-in abortion pills. “The Justice Department of the next conservative administration should therefore announce its intention to enforce federal law against purveyors and distributors of such pills,” the group wrote.