Congress Needs to Repeal the Comstock Act

There’s a strategy to block a national abortion ban. Will Democrats try it?

Illustration of Anthony Comstock behind a pharmacy counter
If Democrats don't move to repeal the Comstock Act, they're setting themselves up to fail at stopping a national abortion ban. Cage Rivera/Rewire News Group

This piece first appeared in our weekly newsletter, The Fallout.

We are just a few short weeks out from oral arguments in FDA v. Alliance for Hippocratic Medicine—the Supreme Court case that could resurrect the Comstock Act and severely curtail access to medication abortion in this country—and conservative lawmakers have made their position on the case very clear. Not only does the Comstock Act prohibit telehealth and shipping pills for medication abortion, even in states where the practice is legal, but it prohibits shipping anything related to abortion and contraception.

In other words, Republican members of Congress just declared with their whole chest to the American public that there’s a federal law they believe could be used to close clinics nationwide and de facto ban abortion. So, can someone please explain to me why, in a presidential election cycle especially, Democrats aren’t trying to do something—anything—about this?

Here’s the thing about federal statutes like the Comstock Act: They can be repealed. Let me say that again. There is a clear answer to Republicans’ attempt to reanimate this Reconstruction-era purity law to ban abortion nationwide. Repeal it.

There’s no guarantee that an effort to try and repeal the Comstock Act would guarantee that the repeal actually happens, especially with this Congress. But the total lack of effort—hell, even the total lack of a public conversation around any possible Comstock fix—is, with one small and rare exception, completely missing from Democrats and the Biden Administration.

By the end of this month, we should have a pretty good sense of how seriously the conservatives on the Supreme Court intend to read the Comstock Act and how far anti-abortion advocates intend to push it. If Democrats in Congress wait much longer to even engage in the Comstock conversation, they will have to answer for their complete unreadiness for a national abortion ban.