WASHINGTON — Sen. Tina Smith has identified a new threat to reproductive rights and she plans to do something about it.
The senator, a former Planned Parenthood executive, is concerned that a law that has been on the books since 1873 called the Comstock Act could end the mailing of a drug called mifepristone that is used in medication abortions.
She also says a new interpretation of that law could even halt interstate commerce in the medical supplies used in surgical abortions.
“That could effectively make abortion impossible to access even in places like Minnesota, which has affirmatively protected a woman’s right to choose by passing reproductive freedom laws,” Smith wrote in a guest column published in the New York Times this week.
The U.S. Supreme Court heard a case last month that concerned an attempt to restrict the use of mifepristone, which is used in conjunction with another drug called misoprostol in medical abortions.
An argument promoted by anti-abortion doctors seeking to rescind Food and Drug Administration rules allowing distribution of mifepristone is that mailing the medication violates the Comstock Act, which prohibits the mailing of contraceptives, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.
The doctor’s arguments got a sympathetic response from certain conservative justices.
“It’s not some obscure subsection of a complicated, obscure law,” Justice Sam Alito said of the argument that the Comstock Act prohibits the mailing of abortifacients.
Meanwhile, Justice Clarence Thomas told the attorney for the medication’s manufacturer, Danco Laboratories, that the Comstock Act’s broad reach “specifically covers drugs such as yours.”
Fears Trump could revive act
Smith hopes the U.S. Supreme Court determines that parties that want to limit the use of mifepristone are found to have no legal standing and things remain the status quo for a drug that is now used in more than 60% of the abortions in the United States.
But the Democratic senator, in her Times column, says she’s concerned that if Donald Trump is re-elected president, a second Trump administration could use the “dead letter” Comstock Act “to severely ratchet back abortion access in America without congressional action.”
In December of 2022, the Biden administration’s Office of Legal Counsel determined the Comstock Act allows the mailing of mifepristone if the sender “lacks the intent that the recipient of the drugs will use them unlawfully.”
However, Smith is concerned that the Justice Department under Trump could easily issue new guidance.
A group of conservative organizations, led by the Heritage Foundation, has provided the Trump campaign with a legal interpretation of the Comstock Act it has called Project 2025 that maintains current law can prohibit the mailing of mifepristone.
So, she is trying to drum up support in the U.S. Senate and U.S. House for legislation that would repeal a law that has not been enforced in nearly a century.
“Anti-abortion extremists will continue to exploit any avenue they can find to get the national ban they champion, and I want to make sure my bill shuts down every one of those avenues,” Smith wrote.
Yet approval of the legislation is a long-shot because it would need GOP votes to circumvent an expected filibuster in the U.S. Senate and is likely to be ignored by the Republican-controlled U.S. House.
Still, the idea of repealing the Comstock Act is gathering support among abortion right groups and pro-choice lawmakers.
“There’s a lot of interest from her colleagues — all Democrats at this time,” a spokeswoman for the senator said.
The Comstock Act was named for the man who wrote it, Anthony Comstock, a former Civil War soldier who moved to New York for work and was shocked by what he viewed as a lewd and anti-Christian society.
He created the New York Society for the Suppression of Vice in 1873, collecting information and what he deemed pornographic material through police raids. That same year he successfully lobbied Congress for approval of the Comstock Act.
Comstock also served as a special agent of the U.S. Post Office Department, with the authority to carry weapons and make arrests — and enforce the law that carried his name.
Comstock boasted about the number of arrests he made and the number of suicides his crusade had brought about. But the power of his law eroded over time.
Birth control advocate Margaret Sanger battled Comstock when she tried to distribute a pamphlet about birth control methods called “Family Limitations,” and her husband was incarcerated for 30 days for unwittingly giving one of Comstock’s undercover agents a copy of the publication. Yet Sanger was able to distribute tens of thousands of copies of her groundbreaking pamphlet.
Meanwhile, the U.S. Supreme Court’s 1965 decision in Criswold v. Connecticut lifted all restrictions on the use of contraceptives by married couples.
According to a biographer, at the end of his life Comstock attracted the interest of a young law student named J. Edgar Hoover, who showed an interest in Comstock’s methods and causes. Hoover, of course, went on to run the FBI.
Ana Radelat
Ana Radelat is MinnPost’s Washington, D.C. correspondent. You can reach her at aradelat@minnpost.com or follow her on Twitter at @radelat.
