Sen. Tina Smith’s introduction of a bill to change the Comstock Act on Thursday was the culmination of more than a year of behind-the-scenes debates between Democrats and abortion rights groups over how to prevent the Trump administration from enacting a nationwide abortion ban.
But it didn’t resolve the fears that any action on the 19th-century law could do more damage than good.
Democratic lawmakers, congressional sources and others involved in the discussions told NOTUS that the bill was ultimately introduced despite internal disagreement among pro-abortion rights Democrats on the Hill and in the administration over whether it was necessary. The central question was not just whether the Comstock Act as-is could be used to ban abortion — the Biden administration and many Democrats say that it can’t — but whether that mattered if they knew a second Trump administration would try. “I fully agree with the administration’s position … that it’s illegal to use Comstock to ban abortion,” Smith told NOTUS on Thursday. “However, I can see, as can everybody else, that the extreme right-wing MAGA Republicans have a road map for using Comstock to do exactly that, and so, as a legislator, it’s my job to do everything I can to take that tool away from them.”
Democrats in Congress have been closely watching calls from Trump allies and anti-abortion advocates urging former President Donald Trump to enforce the Comstock Act as a national abortion ban. The 1873 act is not a ban on abortion, but experts warn that a conservative Justice Department could interpret it broadly to ban abortion pill shipments and even important medical tools.
The effort to repeal or amend the Comstock Act started in earnest in April of last year, Rep. Becca Balint told NOTUS. At the time, she worked on a bill but was privately advised by three big pro-abortion rights groups — Planned Parenthood, the American Civil Liberties Union and the Center for Reproductive Rights — to stay away based on concern it could impact the outcome of a Supreme Court case over abortion pills.
That began months of phone call meetings between congressional Democratic offices, abortion rights groups and legal experts on how to approach the matter.
“That’s when we really started on this path,” Balint said. “We’ve been working on this for a long time.”
Democratic lawmakers also sought legal advice from the Justice Department. Shortly after Roe v. Wade was overturned, the department issued a memo directing the rest of the administration on how to read the Comstock Act, specifically arguing that it makes mailing abortion pills and other materials illegal only when “the sender intends them to be used unlawfully” and that the U.S. Postal Service also does not have a way to determine what a sender’s intent is.
In other words, the administration-approved message was that the Comstock Act couldn’t be used to ban mailing legal abortion pills or materials for legal abortion. And a source familiar with Democrats’ discussions on Comstock said that there is still “concern” among legal experts they consulted for the bill — including at the Justice Department — that its introduction draws attention to Comstock and how it could be used. (The Justice Department declined to comment on Smith’s bill, including whether it was involved in drafting the legislation.)
Democrats didn’t want to go against the Biden administration’s strategy. But as conservative calls to use the Comstock Act to ban abortion became louder, they began to feel more urgency to act.
“The barn doors opened and the horses ran out, right?” the source said of legal experts’ concerns about drawing attention to Comstock. “Like, in some ways, you can’t fit in that thinking anymore.”
Project 2025, a major Trump-aligned presidential transition program, suggested that Comstock ban abortion pills. In March, conservative Supreme Court Justices Samuel Alito and Clarence Thomas expressed interest in reviving the law’s abortion provisions, which haven’t been enforced in decades, during oral arguments in the abortion pill case.
Shortly after those arguments, Smith confirmed in an op-ed that she was working with lawmakers in both chambers on legislation to repeal Comstock and that she would introduce it after the Supreme Court issued a ruling in the abortion pill case. The clock began ticking.
This was a moment for Democrats to make up for not having codified Roe when the precedent was still in place — something they have been heavily criticized for since the Dobbs decision was issued.
Rep. Cori Bush, who became the first lawmaker to call for a repeal of the Comstock Act in the Dobbs era, told NOTUS that dealing with this federal law is a “lesson learned” moment for Democrats.
“We can’t always be the ones responding and reacting. … I think that is what we do,” Bush said. “We can’t sit by and be complacent.”
Last week, the Supreme Court dismissed the abortion pill case, maintaining nationwide access. A week later, Smith introduced the Stop Comstock Act to repeal specific provisions of the law that restrict abortion by prohibiting the shipment of “every article or thing” that is used in the procedure.
It was a compromise: Democrats decided not to seek a full elimination of Comstock, and only to its abortion provisions, because of concerns that federal prosecutors use the law to prosecute child sexual abuse claims. (One House Democrat told NOTUS that they feared Republicans could message against them this election cycle on child sexual abuse if they tried to fully repeal the law.)
“The bill is a compromise to get [Comstock] off the books … but also protect their prosecutions,” Bush told NOTUS.
Balint, who said her companion bill in the House will be introduced on Friday, sent a Dear Colleague letter on Thursday asking for co-sponsors. In the letter obtained by NOTUS, she stated that the bill co-leads were Reps. Veronica Escobar, Mary Gay Scanlon and Bonnie Watson Coleman and the first two original co-sponsors were Reps. Mikie Sherrill and Pat Ryan.
With a GOP-controlled House, it is highly unlikely that Balint’s bill will be brought to the floor — although she has not ruled out filing a discharge petition to force a floor vote — and Democrats lack the necessary majority needed to pass the bill. Balint said that she plans to continue to introduce the bill until it becomes law but added that the legislation gives Democrats an opportunity to educate voters ahead of November on Comstock and how a GOP administration might invoke it.
Neither chamber’s leadership is officially on board yet. Balint said House Minority Leader Hakeem Jeffries “has expressed support for this effort to address the problem with Comstock.” Similarly, House Minority Whip Katherine Clark told NOTUS in May that House Democratic leadership was “working with members who have sponsored legislation around this” but did not specify whether she was backing it.
Sen. Patty Murray, the No. 3 Senate Democrat who leads congressional efforts to protect abortion rights, did not commit on Wednesday whether Senate leadership would support the bill.
“Our Department of Justice has made it very clear that Comstock does not apply,” Murray told reporters on Wednesday. “I think we’re all concerned about what could happen in a Trump administration. But at this point, I’ve not seen the legislation; I’ll obviously review it, but our Department of Justice has said it does not apply.”
President Joe Biden has not weighed in on the bill, although his campaign has released multiple statements suggesting Trump could ban abortion federally “without Congress” by using Comstock.
A White House spokesperson told NOTUS on Thursday that “raising the Comstock Act is part of continued efforts by extremists who will stop at nothing to strip away women’s fundamental freedoms and limit access to evidence-based, safe and effective reproductive health care.”
But they stopped short of endorsing the new Comstock bill: “We support action by Democrats in Congress to protect reproductive freedom and will take a close look at any specific legislation.”
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Oriana González is a reporter at NOTUS. Riley Rogerson, a reporter at NOTUS, also contributed to this report.