Minnesota U.S. Senator Tina Smith is hoping to introduce a bill that would repeal what she calls a "poorly-written and vague" 1873 law that could be used as a tool to limit reproductive freedoms.
The Comstock Act prohibits the mailing of anything profane, which, at the time it was introduced included anything having to do with abortion.
It resurfaced in the United States Supreme Court last week as justices considered access to the abortion drug mifepristone, and whether it can be sent through the mail.
Smith told WCCO's Adam Carter the Comstock Act hasn't been used for nearly a century and that's for good reason.
"If you really followed the theory of the Comstock Act, you probably couldn't mail medical textbooks because of its depictions of the human body," claims Senator Smith. "Or even personal love letters could be caught up in this Comstock Act review."
Abortion rights groups have been hesitant to promote this type of legislation before the Supreme Court decides the mifepristone case.
Smith has written a New York Times Op-Ed making the case of why the law cited by some conservatives who want to enact a national abortion ban should be repealed.
"Very conservative judges appointed by former President Trump have been using the Comstock Act, this old law, as justification for saying that it is not legal to mail medication for abortion," says Smith.
Smith wants to take away the Comstock Act as a tool to limit reproductive freedom, and is talking with House and Senate Democrats to drum up support. The talks were only in the initial phases, and there was no timeline for the legislation to be introduced.
In the House, Rep. Cori Bush (D-Mo.) also called for the law to be repealed. She posted to social media saying it's a “dead law that the far-right is trying to reanimate.”
It is unlikely a Comstock repeal bill would get very far thanks to a divided government with a slim majority for Republicans in the House, and Democrats in the Senate.
WHAT IS THE COMSTOCK ACT?
Originally passed in 1873 and named for an anti-vice crusader, the Comstock Act was intended to prohibit the mailing of contraceptives, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.
The law’s scope has been repeatedly narrowed by federal courts and Congress, which eliminated the reference to contraceptives in the 1970s. And the federal government hasn’t enforced the law since the 1930s, according to legal experts.