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Democrats Begin Their Offensive Against the Comstock Act

After months of stalling, the fight is on to modify a 19th-century law that could end up banning abortion nationwide.

Tina Smith
Sen. Tina Smith said she plans to introduce legislation on the Comstock Act. Jose Luis Magana/AP

Democrats have settled on their game plan to repeal a 19th-century law that could be used to enforce a national abortion ban, NOTUS has learned.

Lawmakers had strategized for months over how to modify the Comstock Act, an 1873 federal statute that prohibits the shipment of “every article or thing designed, adapted or intended for producing abortion.” At the request of activists, Democrats refrained from publicly pushing a repeal bill forward while the Supreme Court evaluated a case on abortion medication.

But after the court issued a procedural ruling on Thursday that preserved nationwide access to the drugs, Democrats are now ready to act.

“Now that the decision’s come, people are like, ‘OK, now we’re not fucking waiting any longer,’ ” one House Democrat told NOTUS, requesting anonymity to discuss the private deliberations.

Anti-abortion groups hope a future Republican administration can use the Comstock Act to restrict abortion, and Democrats are eager to modify the law before a potential Donald Trump second term. Legal and abortion rights advocates from Planned Parenthood, the American Civil Liberties Union and the Center for Reproductive Rights discouraged Democrats from talking about changing Comstock until the Supreme Court’s decision because they worried any legislative action could impact the case’s outcome.

“We’ve waited, we’ve been deferential, and now it’s time to go,” the lawmaker said, adding that Hill Democrats are consulting with the Biden administration and several outside groups to draft text.

After the top court’s ruling, Sen. Tina Smith, who previously suggested an interest in weakening Comstock, officially announced she’d introduce legislation “in the coming days.” Rep. Becca Balint, one of the lawmakers who outside groups had discouraged from acting on Comstock, said on X she was “writing legislation to stop Republicans from abusing the Comstock Act to dismantle our rights.”

A recent poll from Navigator Research found two in three Americans support changing the Comstock Act so that it doesn’t apply to abortion. But while strategists have said messaging repealing the law would help in the November elections, the poll also found most Americans — seven in 10 — have heard “nothing” about the law, highlighting the uphill battle Democrats may face trying to tell voters about it.

Sources familiar with the strategy discussions on Comstock say Democrats’ legislation is not seeking full repeal of the law because it’s sometimes used to prosecute child sexual abuse material. Instead, the Democrats are solely focused on removing provisions that specifically mention abortion.

A full repeal means “we’re going to lose support and we want to have … as broad support as we can,” another House Democrat said.

A bill to repeal Comstock’s abortion provisions would likely not pass the current Congress, but it could give Democrats ammunition for future campaigns.

Oriana González is a reporter at NOTUS.