On Thursday, House and Senate Democrats presented a bill aimed at revamping a law that has been inactive for a long time. Their concern is that the previous administration could use the law to impose strict restrictions on abortion or even ban it altogether.
Senator Tina Smith (D-Minn.) is spearheading a bill that aims to revoke the abortion restrictions imposed by the Comstock Act of 1873. The said law prohibits the mailing of materials related to abortion.
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In a recent statement, Smith expressed concern over the misuse of the Comstock Act, a law that has been obsolete for 150 years and prohibits abortion. According to Smith, extremist Republicans and judges appointed by Trump are exploiting the Act to circumvent Congress and deprive women of their reproductive rights across the country.
She emphasized the urgency of removing this law from the books, stating that allowing MAGA judges and politicians to have control over the lives of American women is far too dangerous.
It is stated in the law that has been in effect for 151 years that the transportation of any item or object that is intended, adapted, or designed for inducing abortion is strictly prohibited.
Congress has narrowed the interpretation of the law over time, leading some experts to believe that it is now obsolete.
With the recent overturning of the landmark Roe v. Wade ruling by the Supreme Court, anti-abortion activists perceive a window of opportunity.
Former Trump administration officials have teamed up with activists to establish a plan for utilizing the Comstock Act to prohibit the delivery of abortion drugs and materials through mail, ultimately resulting in a nationwide abortion ban without the involvement of Congress.
Conservative Justices Clarence Thomas and Samuel Alito referenced the Comstock Act multiple times during the Supreme Court’s oral arguments against attempts to broaden access to the abortion pill mifepristone.
During the hearing, Alito raised concerns about the FDA’s decisions regarding the expansion of access to mifepristone through the mail. He questioned why the agency had not taken the law into account in its decision-making process.
Alito emphasized the significance of the provision, stating that it is not a minor subsection of a convoluted law but rather a prominent feature that is well-known within the industry.
In 2022, the Justice Department under the Biden administration issued a memo clarifying that the law only prohibits the mailing of items if the sender knows that they will be used for illegal activities.
Lower courts have emphasized that the Comstock Act solely pertains to illegal abortions and does not forbid the dispensation of medication or other products that are meant to be utilized for lawful purposes.
The Comstock Act has become a topic of concern for Democrats and the Biden campaign, who are highlighting the potential use of this law by the Trump administration and congressional Republicans to restrict reproductive rights in the lead up to the November election.
According to a recent memo to reporters by Morgan Mohr, senior advisor for reproductive rights in the Biden campaign, Trump’s supporters argue that the Comstock Act, which is 150 years old, provides him with the power to prohibit medication abortion across the country, even in states where it is currently legal.
Mohr wrote that Trump advisors hold a radical legal theory that enables them to prosecute anyone who facilitates an abortion using the internet or U.S. mail, including women and healthcare providers. This theory involves the use of Comstock as a means of prosecution.
Given the current political climate in the divided Congress, it seems highly unlikely that a bill to repeal the Comstock law would make any significant progress. The Republicans in the Senate have already shot down several bills aimed at safeguarding the accessibility of contraception and in vitro fertilization. Despite this, the Democrats are determined to keep the topic of abortion at the forefront of the public discourse, especially as the elections draw near.
Rep. Becca Balint (D-Vt.) expressed that Congressional Republicans and their allies in statehouses are not aligned with the views of the American people. She stated that they are determined to implement radical policies that endanger the lives of women. Balint believes that Americans should have the liberty to make personal choices about their bodies. She also introduced a related bill in the House.
Reps. Cori Bush (Mo.), Veronica Escobar (Texas), Mary Gay Scanlon (Pa.) and Bonnie Watson Coleman (N.J.) joined Balint.
Major advocacy groups, including the ACLU, the Center for Reproductive Rights, Reproductive Freedom for All, and the Planned Parenthood Federation of America, have given their endorsement to the Democrats’ efforts.
Back in 1997, the Democratic party made an attempt to overturn the Comstock Act through the Comstock Cleanup Act of 1997, introduced by then-Representative Barney Frank of Massachusetts. The proposed bill aimed to repeal the abortion provision, but unfortunately, it did not progress any further. Since then, there have been no further attempts from Democrats to introduce any legislation related to the Comstock Act.
Until the mifepristone case was decided by the Supreme Court, abortion rights groups were cautious about advocating for legislation related to the Comstock Act.
Earlier this month, the challenge was dismissed by the justices on procedural grounds, which has now paved the way for the introduction of the bill. The dismissal was unanimous among the justices.
