Democrats Seek to Repeal Comstock Act, Citing Potential Abortion Pill Restrictions

Senate Democrats proposed legislation on June 20 that would repeal an 1800s-era law that they say could be used to restrict abortion and its pill form.

Senate Democrats proposed legislation on June 20 that would repeal an 1800s-era law that they say could be used to restrict abortion and its pill form.

The law, known as the Comstock Act, prohibits the mailing of various items—including those intended to induce an abortion.

Sen. Catherine Cortez-Masto (D-Nev.), who co-sponsored the repeal bill, said that “women didn’t have the right to vote or even open their own bank accounts” when Comstock was written.

“If given the power, anti-choice Republicans have made it clear that they will use this 150-year-old law to enact a national abortion ban without Congress or the American people’s approval,” she said in a statement.

Her office pointed to Project 2025, a conservative roadmap organized by The Heritage Foundation to promote policies former President Donald Trump might pursue if he retakes the White House.

The project consists of a “broad coalition of conservative organizations that have come together to ensure a successful administration begins in January 2025,” according to the group’s website.

Part of Project 2025 cites provisions (18 U.S.C. 1461 and 18 U.S.C. 1462) of the Comstock Act in calling on the Food and Drug Administration to “stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs.”

Former President Trump has generally advanced the idea that individual states should make decisions about abortion.

Rep. Becca Balint (D-Vt.) and her colleagues also introduced a companion bill to repeal Comstock in the House. The repeal will likely have a steeper hill to climb in the Republican-controlled House.The abortion pill has become increasingly important to the debate over abortion access since the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health. In doing so, it allowed states to create a patchwork of access across the country—making it harder for some women to reach clinics for in-person procedures.

The Food and Drug Administration (FDA) made access to the pill easier when it removed the in-person dispensing requirement. A group of doctors challenged the FDA’s deregulation of the pill in federal court but ultimately lost at the Supreme Court in June. However, that decision didn’t rule on the merits of the FDA’s decisions but instead rejected the doctors’ challenge because they lacked standing, according to the court.

During the oral argument in March, Supreme Court Justice Samuel Alito suggested Comstock at least warranted some attention by the FDA.

“It’s not some obscure subsection of a complicated obscure law,” he said.

Justice Clarence Thomas also asked multiple questions about Comstock and indicated to Danco, the manufacturer of Mifeprex, that it would be “susceptible to a Comstock Act problem.”

He told Jessica Ellsworth, an attorney for Danco, that the law “specifically covers drugs such as” Danco’s.

Ms. Ellsworth responded: “We disagree that that’s the correct interpretation of the statute. … This statute has not been enforced for nearly a hundred years, and I, I don’t believe that this case presents an opportunity for this Court to opine on the reach of the statute.”

After Dobbs, the Justice Department issued a memo stating that Comstock “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

“No matter where the drugs are delivered, a variety of uses of mifepristone and misoprostol serve important medical purposes and are lawful under federal and state law,” the memo reads.

In February, a group of 145 members of Congress submitted an amicus brief arguing that the FDA violated Comstock by permitting chemical abortions via mail. It also referred to a letter from Sen. James Lankford (R-Okla.) and dozens of other members telling Attorney General Merrick Garland that the memo should be rescinded.

“The reckless distribution of abortion drugs by mail or other carriers to pregnant mothers who have not been examined in-person by a physician is not only dangerous and unsafe, it is criminal,” the letter reads.

 

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