Anti-abortion activists march during the annual March for Life in front of the Supreme Court.
Anti-abortion activists march during the annual March for Life in front of the Supreme Court on Friday, Jan. 19, 2024, in Washington. Mariam Zuhaib/AP

Democrats Change Strategy on Comstock Act as Republicans Weigh Abortion Ban

There’s been resistance to tweaking the 19th-century law, but Sen. Tina Smith is now planning legislation as the Supreme Court weighs another abortion case.

Democrats are quietly strategizing and preparing legislation to weaken the Comstock Act — a 19th-century law that anti-abortion activists believe former President Donald Trump could use to enforce a full national abortion ban should he return to the White House.

Lawmakers have previously said they would stay away from tweaking the Comstock Act while the Supreme Court evaluates a case that could reinstate restrictions on abortion pills, arguing that — on the advice of abortion rights advocates and attorneys — any legislation could potentially impact the outcome.

But the court will hear oral arguments in that case next week, and Democrats have turned their attention to managing potential fallout when that ruling comes down later this year. Sen. Tina Smith of Minnesota briefed her Democratic colleagues on Comstock during Wednesday’s caucus meeting, several senators told NOTUS. Smith said she “will be ready to introduce legislation as it’s needed once we see what happens with this court case.”

“The bottom line is that we can see that extremist Republicans are using the Comstock Act as their legal justification for rolling back people’s reproductive freedoms, and I think we have to be ready to fight back on that, and that’s what I’m working on,” Smith told NOTUS.

The Comstock Act is a series of 1873 laws that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.” The laws were considered unenforceable when Roe v. Wade was in place, but last year, a federal judge in Texas ruled that Comstock prohibits the shipment of the two drugs used in most abortions in the U.S. — bringing attention to whether the law, which some legal experts say is dormant, is enforceable or not.

The last time Democrats introduced a bill to modify or repeal Comstock was in 1997 with the Comstock Cleanup Act, which would have repealed its abortion prohibitions.

Over in the House, Rep. Barbara Lee, co-chair of the House Pro-Choice Caucus, told NOTUS that House Democrats are “in the process of determining our strategy” on Comstock. Lee did not specify whether that meant seeking to modify the law or repeal it altogether.

The Supreme Court is considering the abortion pill case that started in Texas — Food and Drug Administration v. Alliance for Hippocratic Medicine — but it’s unclear whether the justices will take on the question of whether Comstock should have barred the FDA from approving mifepristone, one of the two abortion pills, to terminate a pregnancy back in 2000.

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Anti-abortion advocates argue that the FDA violated Comstock, particularly when it allowed abortion pills to be accessed via mail in 2021.

“By removing the in-person dispensing requirements, the FDA violated Comstock, which bans the mailing of chemical abortion drugs,” said John Mize, CEO of Americans United for Life, an anti-abortion law firm, at a press conference with House Republicans on Thursday. “The Biden administration has pushed the FDA way beyond the limits of its authority.”

Some abortion rights advocates have been urging Democrats to move to repeal the law amid concerns that it could be read broadly as a full ban. An effort to modify or repeal Comstock would likely fail in a divided Congress, but Democrats’ move to introduce a largely symbolic bill suggests their interest in elevating the issue in an election year, which strategists have said could help them in November.

Republicans say that they will oppose attempts to get rid of Comstock’s abortion provisions.

“We’ll fight them,” said Rep. Chris Smith, chair of the House Pro-Life Caucus.

Oriana González is a reporter at NOTUS.