U.S. Lawmakers Attempt to Thwart Effort to Use Comstock Act of 1873 to Ban Abortion Nationwide

By Ebenezer Mamo

WASHINGTON, DC – In the U.S. House and Senate last week, lawmakers from both chambers introduced a bill that would strike down the Comstock Act of 1873 and prevent it from being used in a nationwide abortion ban.

It is essentially an anti-obscenity bill that among other things, makes it a crime to mail anything that’s indecent, filthy, or vile or intended for producing abortion. according to an ACLU statement.

The ACLU statement also talks about how according to anti-abortion extremists, the Comstock Act makes it a crime to send or receive drugs or articles that are used in abortion care by mail or common carriers like UPS and FedEx.” 

Congress is trying to repeal this century-old bill in order to put a stop to this potential nationwide ban, argued the ACLU, noting that if Congress isn’t able to pass this repeal of the Comstock Act then the danger is if Trump is reelected his supporters plan to revive this long dormant bill in order to accomplish their goal of banning abortion on a national level.

According to a New York Times article written by Lisa Lerer and Elizabeth Dias, Donald J. Trump and officials who served in his administration are planning ways to restrict abortion rights if he returns to power that would go far beyond proposals for a national ban or the laws enacted in conservative states across the country. 

One of the ways, the Times wrote, that Trump’s allies plan to do that is by circumventing Congress in using the older, more obscure law of Comstock Act of 1873.

The ACLU states, Trump and his political allies want to use a fringe interpretation of the Comstock Act to effectively ban abortion nationwide if he were to win a second term.

The ACLU adds that the threat to misuse this outdated law to ban abortion in all 50 states comes from a chorus of Trump allies including the crafters of Project 2025, which has laid out a strategy for Trump’s second term; as well as Jonathan Mitchell, who is Trump’s lawyer… who stated in the press release, we don’t need a federal [abortion] ban when we have Comstock on the books” 

The ACLU argues that using the Comstock Act in this manner would be illegitimate especially when being used as a backdoor nationwide ban to defy long-standing rulings by federal courts and the Justice Department which both determined that the law does not apply to lawful abortion care only illegal abortion care.

The ACLU added that in the early twentieth century, federal appellate courts reached a consensus that the Comstock Act only criminalizes sending and receiving materials to be used for otherwise unlawful abortion and contraception. The courts’ uniform conclusion was that the Act does not apply to drugs and articles sent and received for lawful abortion care.” 

Congress already knew about the court’s ruling about the Comstock Act only applying to illegal abortions and if they disagreed with that ruling then you would have seen Congress change the law, asserts the ACLU.

The ACLU insists that this means that Congress concurred with courts narrowing the scope of laws under the principle of congressional ratification. As the Supreme Court explained in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, ‘(I)f a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.’

Madison Roberts, senior legislative counsel to the ACLU, said, Trump’s advisors are quietly plotting to bypass Congress and misuse a 150-year-old law to attempt to ban abortion in every state in the country. They are arguing that the Comstock Act is a de facto national abortion ban already on the books, and they are wrong.”

Roberts added that anti-abortion extremists have manipulated laws to ban abortion before, and they are promising to do it again – even in states that have passed statutory and constitutional protections for abortion.”  

The ACLU stated that we applaud leaders in Congress for introducing the Stop Comstock Act to fight back against extremists’ threats to misuse Comstock as a nationwide abortion ban. We will continue to work with elected leaders to raise the alarm and neutralize this potential anti-abortion attack before Trump allies get the chance to launch it.

About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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