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Repeal the Comstock Act

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I was wondering if there would be a serious movement to put this on the radar, and I’m not surprised that it’s Tina Smith that’s stepping up:

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.

It would be outrageous for the courts to interpret the statute to create a nationwide abortion ban, but given who controls them you would prefer not to leave any weapons lying around. Of course, it’s a moot point as long as the Senate filibuster exists, but you have to start the ball rolling sometime.

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