A Bill to Undo the Comstock Act Is Finally Here. Why Isn’t It a Full Repeal?

The Department of Justice insisted broad "obscenity" language is necessary to prosecute child sexual abuse material, a source tells Rewire News Group.

Graphic illustration of a gnome pushing boxes labeled obscene materials
After the Supreme Court overturned the constitutional right to abortion two years ago, Comstock has emerged as one of the most serious threats to reproductive health. Cage Rivera/Rewire News Group illustration

After more than a year of intensifying calls to repeal the Comstock Act, Sen. Tina Smith (D-MN) introduced a bill that would remove language related to abortion from the 19th-century anti-obscenity law. However, the effort stops short of a full repeal—and President Joe Biden’s Department of Justice may be the reason.

Though the text has changed slightly from the 1873 original, today’s federal Comstock laws still ban the importation and mailing of anything that could be considered “obscene.” Currently, this includes an explicit prohibition on mailing “every article or thing designed, adapted, or intended for producing abortion.” If enforced, this would govern not only the U.S. Postal Service, but anything sent by “common carrier”—in other words, any type of shipping or delivery service.

However, after Roe v. Wade and Griswold v. Connecticut—the 1965 Supreme Court case that legalized contraception for single people and formed much of the legal basis for Roe—Comstock came to be seen as a “dead” law, at least as applied to abortion and contraception. But Comstock is a key feature in the ultra-conservative Project 2025 plan to restrict access to abortion pills, and Texas SB 8 architect Jonathan Mitchell has made it clear he sees Comstock as an easy path to a total national abortion ban, with no action from Congress required.

In the wake of Dobbs v. Jackson Women’s Health Organization, Comstock has emerged as one of the most serious threats to reproductive health care.

“This is why I’m introducing legislation to repeal Comstock,” Smith said in a press release on Thursday. “It is too dangerous to leave this law on the books; we cannot allow MAGA judges and politicians to control the lives of American women.” Smith introduced the bill in the Senate along with 18 co-sponsors. Companion legislation was introduced in the House by Reps. Becca Balint, Cori Bush, Veronica Escobar, Mary Gay Scanlon, and Bonnie Watson Coleman.

According to a source directly involved in crafting the legislation, the main obstacle to a full Comstock repeal was the DOJ, which told lawmakers that the Comstock Act is essential to its prosecution of child sexual abuse material (CSAM). The source spoke to Rewire News Group on the condition of anonymity because they were not authorized to make public statements on the matter.

The DOJ declined to provide lawmakers with information in writing, the source said, but claimed Comstock was key to at least 40 to 50 CSAM cases in recent years—even suggesting there are some cases that would be impossible to prosecute without it. Over a series of at least five meetings, the source said, the DOJ insisted that the word “obscene” must remain in the statute, or else any proposal would harm its ability to prosecute child pornographers.

“Obviously, we couldn’t really have that,” the source said. “It’d be a GOP field day on ‘Dems support child porn.’”

Child sexual abuse material is a serious crime—but is already illegal in and of itself. The DOJ’s concern, the source suggested, may be more theoretical than practical. RNG reached out to the DOJ to ask for an example of a CSAM case that could not have been prosecuted without the Comstock Act. The DOJ declined to comment.

The problem with this approach, according to some advocates, is that “obscenity” is a broad and vaguely defined concept. Court interpretations of what counts as “obscene” have shifted significantly over the years, which means that simply removing language about abortion from the Comstock statutes may not be enough to guard against broad interpretations of the law.

“ALL OF COMSTOCK MUST GO,” We Testify co-executive director Renee Bracey Sherman said on X. “Comstock went after ‘obscenities,’ yes abortion but also birth control, sex workers, pornography, & sex toys. (He really hated sex toys!) A piecemeal approach will not liberate abortion. We must protect freedom of sex, sexual expression, and obscenities.”

And when it comes to pornography, Comstock never died. It has been used to prosecute many pornographers, even those making content by and for consenting adults. Most recently, there was a string of such cases in the early 2000s, when, at the urging of conservative groups, George W. Bush’s DOJ formed an Obscenity Prosecution Task Force.

“Since the Obama administration wound down the Bush-era obscenity prosecutions brought under Comstock, the anti-obscenity portions of the act have really only been used in child pornography cases as add-on charges in the event something fell through with the child pornography aspect of the case,” Jennifer Kinsley, a professor of law at Northern Kentucky University and judge on the Ohio First District Court of Appeals, wrote in an email to Rewire News Group. “For example, sometimes a defendant will challenge whether the victim depicted in the material is a real child, but that legal issue disappears in obscenity charges.”

Kinsley added that in a child pornography case, a Comstock Act obscenity charge may aid in plea bargaining.

“It may give the government a charge to dismiss in exchange for a guilty plea to child pornography, or, in appropriate cases, it may provide an alternative to a child pornography plea (for example, where the computer forensics are weak as to who distributed the images),” Kinsley said.

Any attempt to repeal or alter the Comstock Act is a long shot. It is unlikely to pass in either chamber, let alone to gain filibuster-proof support in the Senate. So, in what is largely a symbolic gesture, why not push for a full repeal? Strategic considerations may have come into play, the legislative source said.

“Having [a repeal] labeled ‘pro-porn’ right out of the gate will kill it down the road, even later when it is possible to pass it,” the source said.

Prior to the bill’s introduction, NOTUS reported that mainstream reproductive and civil rights groups, including Planned Parenthood, Center for Reproductive Rights, and the American Civil Liberties Union, were standing in the way of a Comstock repeal for fear it could affect ongoing litigation.

The Supreme Court’s recent narrow ruling in FDA v. Alliance for Hippocratic Medicine appears to have cleared that roadblock, as the partial repeal is endorsed by Planned Parenthood, Center for Reproductive Rights, and other major reproductive rights groups, including Reproductive Freedom for All (formerly NARAL), National Women’s Law Center, Physicians for Reproductive Health, and EMAA Project.

However, there could be value in this piecemeal attempt, said Rachel Rebouché, dean of the Temple University Beasley School of Law.

“What’s important about this message is that Comstock was never about abortion, really. It was never meant to be a total abortion ban,” Rebouché said. “It was never applied to people who were doing lawful abortions.”

That doesn’t mean that Comstock didn’t affect abortion access—it did, both in practical ways and even more so through the chilling effect it had. But the law’s original text specified it applied only to “unlawful” abortions.

“The way the Comstock Act has been applied is that it should not ban abortion in states that have proactively said, ‘We protect abortion rights,’” Rebouché said. This is in line with the DOJ’s interpretation of Comstock as well, which could be another reason it is hesitant toward legislation it sees as endorsing a misinterpretation of the law.

Misinterpretation or no, the fact remains that the next presidential administration could interpret the Comstock Act in any way it pleases.

“That’s the impetus for this, is to put on people’s radar screens that a law that was never an abortion ban could be used to ban abortion two years after the Supreme Court said, ‘This is a state issue’—to say that the Comstock Act is being bastardized by the anti-abortion movement,” Rebouché said.