Democrats target 150-year-old 'zombie law,' warning the GOP could use it to ban abortion

WASHINGTON — A group of Senate Democrats is pushing to repeal a 150-year-old law that reproductive rights advocates fear could be used to further curb access to abortion, specifically abortion pills.

The Comstock Act of 1873 bans lewd, obscene or abortion-producing materials from being sent through the mail, although it has not been widely enforced for decades. As the abortion pill mifepristone faces legal challenges, its defenders fear that the Comstock Act could be used by a future president as a tool to curtail abortion access nationwide, including in states where it is legal.

“The Comstock Act is a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history,” Sen. Tina Smith, D-Minn., a leader on the bill, said in a statement announcing the legislative push. “Now that Trump has overturned Roe, a future Republican administration could misapply this 150-year-old Comstock law to deny American women their rights, even in states where abortion rights are protected by state law.”

While Planned Parenthood has endorsed the new legislation, there has been reluctance from some parts of the reproductive rights movement and from other elected Democrats to dive too deeply into overturning the Comstock Act for fear of legitimizing it.

Senate Majority Leader Chuck Schumer, D-N.Y., hasn't weighed in and dodged when asked by NBC News about taking action against Comstock last week; instead, he pointed to moves his party has taken on other related matters.

“Look,” Schumer said, “we moved forward last week on contraception, this week on IVF, and you’ll be hearing more from us on reproductive rights in the near future.”

The issue could become a new frontier for Democrats as they pursue a blitz of symbolic legislation to protect reproductive rights, using widely expected Republican opposition to highlight the contrast for voters ahead of the 2024 elections.

Some Democrats have pointedly warned that the Comstock Act could be exploited if Congress doesn’t act.

“They want to try to misuse the 1873 Comstock Act, which the Department of Justice has repeatedly made clear does not apply, as a backdoor way to ban abortion nationwide by criminally prosecuting people for mailing medication abortion — and potentially even the medical supplies necessary for abortion care,” Sen. Patty Murray, D-Wash., the chair of the Appropriations Committee, told reporters last week.

The Biden administration has rejected the view that the law could curtail abortion rights. The Justice Department wrote in December 2022 that the Comstock Act “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Abortion opponents have cited the law in litigation, arguing that the FDA ran afoul of the Comstock Act by green-lighting the pill and distribution of it. That includes a mifepristone case the Supreme Court dismissed last week, saying the plaintiffs lacked standing.

The Heritage Foundation, a conservative think tank, said in its “Project 2025” vision for how the Trump administration should govern that the Comstock Act ought to be used to “Enforce the Criminal Prohibitions” regarding abortion pills using the mail. “The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills,” the group wrote.