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Democratic senator eyeing bill to repeal Comstock Act

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Congressional Democrats are strategizing over legislation to repeal the Comstock Act, the 19th-century anti-vice law that’s being eyed by conservative activists to potentially enact a national abortion ban.

Sen. Tina Smith (D-Minn.) said in a New York Times op-ed Tuesday that she wants to introduce a bill “to take away the Comstock Act as a tool to limit reproductive freedom.”

Smith said she is speaking with House and Senate Democrats to build support for a potential bill, but the talks were only in the initial phases, and there was no timeline for the legislation to be introduced.

“Legislation to repeal Comstock could take many forms, and we need to do it the right way,” Smith wrote.

In the House, Rep. Cori Bush (D-Mo.) also called for the law to be repealed, saying in a social media post it’s a “dead law that the far-right is trying to reanimate.”

It is unlikely a Comstock repeal bill would get very far in the current divided Congress, but Democrats are committed to elevating abortion as an election year issue.

The 151-year-old law explicitly prohibits the shipment of “every article or thing designed, adapted or intended for producing abortion.”

Anti-abortion groups contend the Biden administration violated the law when it allowed the abortion drug mifepristone to be sent through the mail.

During oral arguments at the Supreme Court last week over the constitutionality of that move and other administration efforts to expand access to mifepristone, conservative Justices Clarence Thomas and Samuel Alito repeatedly invoked the Comstock Act.

The law wasn’t enforceable while Roe v. Wade was on the books, and it hasn’t been applied in nearly a century. But now that Roe has been overturned, anti-abortion activists see an opening. 

These activists, working with former Trump administration officials, have been laying the groundwork for the next Republican administration to apply the Comstock Act to prevent the mailing of any abortion drugs and materials, effectively banning all abortions without needing Congress to act.

The last time Democrats introduced any legislation related to the Comstock Act was in 1997, when then-Rep. Barney Frank (Mass.) led the Comstock Cleanup Act of 1997, which would have repealed the abortion provision. The bill never advanced.  

Abortion rights groups have been hesitant to promote legislation related to the Comstock Act before the Supreme Court decides the mifepristone case. Smith indicated there won’t be any legislation until after a decision comes later this summer.

“Once the Supreme Court has had its say (and many legal analysts speculate that the mifepristone case heard last week should be thrown out on procedural grounds, and may well be), I’ll be ready to have mine,” she wrote.