After more than a year of intense calls to repeal the Comstock Act, Sen. Tina Smith (D-MN) was introduced a bill that would remove abortion-related language from the 19th-century anti-vulva law. However, the effort stops short of a full repeal — and President Joe Biden’s Justice Department may be the reason.
Although the text has changed slightly from the 1873 original, today’s federal Comstock laws still prohibit the importation and mailing of anything that could be considered “obscene.” Currently, this includes an express prohibition in the mail “any article or thing designed, adapted, or intended to cause abortion.” If enacted, it would govern not only the US Postal Service, but anything sent by a “common carrier”—in other words, any kind of shipping or delivery service.
However, after Roe v. Wade and Griswold v. Connecticut— the 1965 Supreme Court case that legalized contraception for singles and formed much of the legal basis for Roe—Comstock was perceived as a “dead” law, at least as it applied to abortion and contraception. But Comstock is a key feature of the ultra-conservative Project 2025 plan to limit access to abortion pills, and Texas SB 8 architect Jonathan Mitchell he has made it clear that he is seeing Comstock as an easy path to a complete national abortion ban, requiring no action by Congress.
In its wake Dobbs v. Jackson Women’s Health OrganizationComstock has emerged as one of the most serious threats to reproductive health.
“That’s why I’m introducing legislation to repeal Comstock,” Smith said he said in a press release Thursday. “It is too dangerous to leave this law on the books. we cannot allow MAGA judges and politicians to control the lives of American women.” Smith introduced the bill in the Senate along with 18 co-sponsors. Companion legislation was introduced in the House by Representatives Becca Balint, Cori Bush, Veronica Escobar, Mary Gay Scanlon and Bonnie Watson Coleman.
According to a source directly involved in the creation of the legislation, the main obstacle to fully repealing Comstock was the DOJ, which told lawmakers that the Comstock Act was necessary to prosecute Child Sexual Abuse Material (CSAM). The source spoke to me Rewire News Group on condition of anonymity because they were not authorized to make public statements on the matter.
The Justice Department declined to provide lawmakers with information in writing, the source said, but claimed Comstock was key to at least 40 to 50 CSAM cases in recent years — even suggesting there are some cases that would be impossible to prosecute without him. In a series of at least five meetings, the source said, the Justice Department insisted that the word “obscene” must remain in the statute, or any proposal would hurt its ability to prosecute child pornographers.
“Obviously, we couldn’t really have that,” the source said. “It would be a GOP day in the ‘Democrats support child pornography’ field.”
Child sexual abuse material is a serious crime, but it is already illegal in its own right. The Justice Department’s concern, the source suggested, may be more theoretical than practical. RNG contacted the DOJ to request an example of a CSAM case that could not have been prosecuted without the Comstock Act. The DOJ declined to comment.
The problem with this approach, according to some proponents, is that “optimism” is a broad and vaguely defined concept. Court interpretations of what is considered “obscene” have changed significantly over the years, meaning that simply removing the abortion language from the Comstock statute may not be enough to protect it from its broad interpretations. law.
“ALL OF COMSTOCK MUST GO,” We Testify co-executive director Renee Bracey Sherman he said at X. “Comstock pursued ‘obscenities’, yes abortion, but also birth control, sex workers, pornography and sex toys. (He really hated sex toys!) A piecemeal approach will not liberate abortion. We must protect the freedom of sex, sexual expression and obscenity.”
And when it comes to pornography, Comstock never died. It has been used to prosecute many pornographers, even those producing adult content and their consent. More recently, there was a spate of such cases in the early 2000s when, at the urging of conservative groups, George W. Bush’s DOJ created a Obscenity Task Force.
“Since the Obama administration ended the Bush-era obscenity prosecutions brought under Comstock, the obscenity sections have really only been used in child pornography cases as additional charges in case something went wrong with the child pornography aspect of the case,” Jennifer Kinsley, a law professor at Northern Kentucky University and a judge on the Ohio Court of Appeals for the First Circuit, wrote in an email. Rewire News Group. “For example, sometimes a defendant disputes whether the victim depicted in the footage is a real child, but that legal issue disappears with obscenity charges.”
Kinsley added that in a child pornography case, a Comstock Act lewd act charge can help negotiate a plea.
“It may require the government to drop a guilty plea to child pornography in exchange or, in appropriate cases, it may provide an alternative to a child pornography conviction (for example, when computer forensics is weak as to who distributed the images),” Kinsley said.
Any attempt to repeal or amend the Comstock Act is far-fetched. It’s unlikely to pass either house, let alone win unwavering support in the Senate. So in what is largely a symbolic gesture, why not push for a complete repeal? Strategic considerations may have come into play, the legislative source said.
“Having [a repeal] Labeling it ‘pro-porn’ right out of the gate will kill it in the road, even later when it’s possible to get past it,” the source said.
Before the introduction of the bill, NOT US reported that major reproductive rights and civil rights groups, including Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union, were standing in the way of Comstock’s repeal out of fear that it could affect ongoing litigation.
The recent close decision of the Supreme Court FDA v. Alliance for Hippocratic Medicine appears to have cleared that hurdle, as partial repeal is supported by Planned Parenthood, the Center for Reproductive Rights, and other major reproductive rights groups, including Reproductive Freedom for All (formerly NARAL), National Women’s Law Center, Physicians for Reproductive Health and EMAA Project.
Still, this piecemeal effort could have value, said Rachel Rebouché, dean of Temple University’s Beasley School of Law.
“What’s important about this message is that Comstock was never about abortion, really. It was never intended to be a complete ban on abortion,” Rebouché said. “It was never applied to people who had legal abortions.”
That’s not to say Comstock didn’t affect access to abortion — she did, both in practical ways and even more so through the chilling effect she had. But of the law original text clarified that it only applies to “illegal” abortions.
“The way the Comstock Act has been implemented is that it shouldn’t ban abortion in states that have proactively declared, ‘We protect abortion rights,'” Rebouché said. This is consistent with The DOJ’s interpretation of Comstock as well, which could be another reason he balks at legislation he sees as supporting a misinterpretation of the law.
Misinterpretation or not, the fact remains that the next presidential administration could interpret the Comstock Act any way it wants.
“That’s the impetus for this, is to put on people’s radar screens that a law that was never a ban on abortion could be used to ban abortion two years after the Supreme Court said, ‘This is a state issue.’ —to say that the Comstock Act is being bastardized by the anti-abortion movement,” Rebouché said.
