Democrats move to repeal anti-obscenity and anti-abortion act from 1973

Democrats will introduce legislation on Thursday to repeal a 19th-century anti-obscenity law that bans mailing abortion-related materials, amid growing worries that anti-abortion activists will use the law to implement a federal abortion ban.

The bill to repeal the Comstock Act is set to be introduced on Thursday by the Minnesota Democratic senator Tina Smith, whose office provided a draft copy of the legislation to the Guardian. The Massachusetts senator Elizabeth Warren and Nevada senator Catherine Cortez Masto will also back the bill, according to the Washington Post, which first reported the news of Smith’s plans. Companion legislation will be introduced in the House.

Passed in 1873, the Comstock Act is named after the anti-vice crusader Anthony Comstock and, in its original iteration, broadly banned people from using the mail to send anything “obscene, lewd or lascivious”, including “any article or thing designed or intended for the prevention of conception or procuring an abortion”. In the 151 years since its enactment, legal rulings and congressional action narrowed the scope of the Comstock Act. For years, legal experts regarded it as a dead letter, especially when Roe v Wade established the constitutional right to an abortion.

But after the US supreme court overturned Roe in 2022, some anti-abortion activists started arguing that the Comstock Act’s prohibition against mailing abortion-related materials remained good law. Project 2025, a playbook written by the influential thinktank the Heritage Foundation, recommends that a future conservative presidential administration use the Comstock Act to block the mailing of abortion pills. Other activists have gone even further, arguing that the Comstock Act can outlaw the mailing of all abortion-related materials.

Because abortion clinics rely on the mail for the drugs and tools they need to do their work, such an interpretation of the Comstock Act would be a de facto ban on all abortion.

The Biden administration has issued guidance arguing that someone only violates the Comstock Act if the sender intends for abortion-related materials “to be used unlawfully”. However, although Joe Biden has focused his re-election campaign on reproductive rights, he has steered clear of addressing the potential return of the Comstock Act.

“We can’t let anyone – not the Supreme Court, not Mr Trump and certainly not a random busybody from the 19th century – take away Americans’ right to have access to medication abortion,” Smith wrote in an April New York Times op-ed, in which she first aired her plan to repeal the Comstock Act. “We must protect the ability of doctors, pharmacies and patients to receive in the mail the supplies they need to exercise their right to reproductive care.”

In her op-ed, Smith suggested that she planned to introduce the legislation once the supreme court ruled on a case involving access to mifepristone, one of the two drugs typically used in US medication abortions and a top target of anti-abortion activists. In a unanimous opinion earlier this month, the supreme court ruled on technical grounds to let access to mifepristone remain unchanged for now.