Democrats move to repeal federal law that forbids abortion materials in U.S. mail

U.S. Capitol Building, Washington, D.C. / Credit: Shutterstock

CNA Newsroom, Jun 21, 2024 / 11:30 am (CNA).

Democrats worried that a new Trump administration may use a 150-year-old federal law to stop abortion pills from being sent through the mail have announced an attempt to repeal it.

Sen. Tina Smith, D-Minnesota, said in a Thursday press release on her website that she had introduced a bill to repeal the Comstock Act, a law she claimed “Republicans and anti-choice extremists want to misuse to ban abortion nationwide.”

Passed in 1873, the Comstock Act bans in part the usage of the U.S. Postal Service to send any materials that can facilitate or cause abortions.

The portions of the Comstock Act banning the mailing of abortion-causing items have not been enforced for decades, at least since 1973, when the U.S. Supreme Court declared a right to abortion under the federal constitution in Roe v. Wade.

Yet the question came up again after the court overturned Roe in June 2022 and declared that there is no federal constitutional right to abortion, sending abortion law back to legislatures and state referendums.

Smith in her announcement on Thursday said the Comstock rule is “a 150-year-old zombie law,” one that’s “long been relegated to the dustbin of history.”

“Now that Trump has overturned Roe, a future Republican administration could try to misapply this 150-year-old Comstock law to deny American women their rights, even in states where abortion rights are protected by state law,” she alleged. 

The senator said it was “too dangerous to leave this law on the books.” Multiple other Democrats signaled their support for the bill on Thursday. 

The federal Food and Drug Administration began allowing abortion pills to be sent through the mail on a temporary basis in April 2021, not long after President Joe Biden took office. The agency made the approval permanent in December 2021.

The Biden Justice Department’s Office of Legal Counsel said in December 2022 that mailing abortion pills does not violate federal law “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Carol Tobias, president of the National Right to Life Committee, decried attempts to repeal the Comstock Act’s references to abortion-causing items.

“It’s quite astounding. Democrats in Congress must wake up every day wondering what else they can do to make it easier to end the lives of unborn children,” Tobias told CNA by text.

“These are the same people trying to shut down pregnancy centers, trying to block pregnancy centers from online search engines, and vilifying the abortion pill reversal process,” Tobias said. “This latest effort is one more attempt not to help women and babies but instead an effort to make it easier to kill preborn babies.”

“It’s sad that the Democratic Party has become the party that pushes death for the most innocent and vulnerable among us.”

Susan B. Anthony Pro-Life America, meanwhile, said the Comstock Act repeal isn’t likely to gain traction in Congress this year, given that Republicans control the U.S. House of Representatives and Democrats control the Senate, both by a narrow majority.

“The bill is unlikely to go anywhere given the makeup of the House and Senate,” a spokesman for the organization told CNA by email.

“Instead of fearmongering about how a law may be applied, Democrats should be ensuring that the FDA is actually protecting women’s health with proper safety standards for abortion drugs.”