Why Democrats are suddenly so concerned about a law from 1873

The conservative playbook Project 2025 — which many believe lays out policy for a second Trump term — makes clear that Republicans intend to start using the rarely-invoked law again

Eric Garcia
Washington DC
Thursday 20 June 2024 22:42 BST
Women voters ‘will not get over’ Dobbs decision, says senator

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Louise Thomas

Louise Thomas

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On Thursday, Senator Tina Smith of Minnesota launched the next phase of Democrats’ push to protect abortion rights. She did so by introducing legislation to roll back the 1873 law that Democrats fear Republicans would use to ban medication abortion.

Smith is the only Senator who has worked at a Planned Parenthood clinic and she quickly became Senate Democrats’ leading policymaker on protecting abortion rights after the Dobbs v Jackson decision that killed Roe v Wade.

Her new legislation would repeal the Comstock Act of 1873, which targeted the mailing of contraceptives, pornography and anything “intended for producing abortion, or for any indecent or immoral use.” Comstock has largely not been enforced for the past 100 years, particularly after Roe. But now Democrats are worried it could make a legislative return.

“I think it's important for Americans to understand that Trump and his MAGA advisors have a plan to use this 150-year-old archaic law to deny access to medication abortion and potentially all abortion,” Smith told The Independent.

“I don't actually think that's legal, but they do,” she added. “I think the threat of them misapplying this law is a clear threat.”

The legislation to roll back the Comstock law is not likely to pass, given that Democrats have only 51 votes in the Senate and Republicans control the House of Representatives.

Rather, Smith’s legislation serves two purposes: Firstly, it lays out what type of action Democrats would take if they hold the White House and Senate and flip the House; and secondly, it sends out a warning about the type of policies that conservative circles are crafting after the death of Roe.

Comstock received increased attention earlier this year when the Supreme Court heard arguments about whether to overturn the federal government’s approval of mifepristone, a common abortion drug. During those hearings, Justices Clarence Thomas and Samuel Alito both brought up Comstock during their questioning.

The Supreme Court voted to allow for mifepristone to remain on the market, rejecting the arguments from an influential conservative legal group known as the Alliance Defending Freedom. The ADF is not a group that exists on the margins; House Speaker Mike Johnson once served as a counsel for the group and Senator Josh Hawley’s wife Erin Hawley works for it right now.

Similarly, Project 2025 — the nearly 1,000-page policy briefing compiled by the right-wing Heritage Foundation as a potential roadmap for a second Trump administration — specifically cites Comstock when it describes its plan to “stop promoting or approving mail-order abortions.”

Even though Trump’s campaign is not officially affiliated with Project 2025, the project has a constellation of various conservative advocacy groups attached to it, and is known to be influential. Indeed, Roger Severino, who wrote the provisions in Project 2025 about mifepristone, served in the Department of Health and Human Services in the Trump administration.

Smith thinks that’s enough evidence to sound the alarm about what Trump would do.

“That's what they're saying they're going to do,” Smith said. “And when they tell us what they're going to do, we need to believe that.”

The action is just the latest in a series of messaging bills Democrats have put forward to show where they stand — and where Republicans do not — when it comes to abortion rights and reproductive care. Last week, Republicans blocked a vote on protecting access to in vitro fertilization (IVF) and the week before, Democrats staged a vote on protecting accesss to contraception.

Democrats hope they can take this message on the road as well. Senator Catherine Cortez Masto — who largely won re-election in 2022 in the swing state of Nevada based on her support for abortion rights — also signed onto Smith’s legislation. She noted that polls show Nevada as a whole supports abortion rights.

“It’s not just Democrats,” she told The Independent. “What Nevadans want and what everyone should have are elected representatives who reflect the wishes” of the majority of the country, she added.

Smith also said that Dobbs effect will not be going away anytime soon.

“The idea that women voters are going to get over this and they’re going to adapt and adjust just shows how little the people who say that know about women,” she said.

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