When the Comstock Act was written, germ theory was still contested science, blood types and vitamins were medical mysteries, and the most common cause of death in the U.S. was tuberculosis, then known as consumption. And yet a movement has been gaining steam to use the 1873 law to ban a vital type of medical care nationwide: abortion. Experts say this strategy may well succeed if former president Donald Trump is elected to a second term in November.
Abortions are extremely safe—far safer than pregnancy, studies show. “Abortion is a very safe procedure,” says Glenmarie Matthews, a gynecologist at RWJBarnabas Health in New Jersey. It is also vital medical care for much of the population. “We are trying to isolate abortion care from women’s health care, but it’s all intertwined into one thing,” she says. It’s also politically popular—the clear majority of Americans believe abortion should be legal under most circumstances.
Despite these facts, antiabortion activists have been pursuing a host of tactics for restricting the procedure as much as possible. The most successful of these efforts resulted in the 2022 Supreme Court decision that overturned the legal protection for abortion that had been enshrined in Roe v. Wade in the case known as Dobbs v. Jackson Women’s Health Organization. Other strategies have included challenging the Food and Drug Administration’s approval of mifepristone, one of two pills often used in medication abortion, and pushing for state and national constitutional amendments that give the rights of personhood to fetuses.
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An Antiobscenity Crusader’s Law
And then there’s the Comstock Act. It has been lurking in federal law but unenforced for decades. And in terms of abortion, it was unconstitutional while Roe stood. The law originally forbade sending “obscene, lewd, lascivious, indecent, filthy, or vile” materials, as well as information about and instruments of contraception or abortion, through the mail. (Contraception was removed from the law in 1971.) Those found guilty could be fined and/or imprisoned for up to five years, and the prison sentence could be twice as long for a repeated offense. (So-called mini Comstock Acts targeted similar or often broader crimes at the state level. Many of these measures also remain on the books.)
The law is named for its vocal proponent, Anthony Comstock, founder of the New York Society for the Suppression of Vice. Comstock later wrangled a role as special agent of the U.S. Post Office Department for some four decades, entitling him to enforce his own law.
He did so strategically and venomously, says Mary Ziegler, a professor of law at the University of California, Davis. Comstock particularly targeted people who spoke out against the law. He also encouraged people’s enemies, exes, and neighbors and others to inform on them. “These selective prosecutions frightened everybody else, so a lot of people voluntarily stopped providing certain forms of care because they were afraid,” Ziegler says. “Patients, too, stopped asking for it.”
But the Comstock Act’s enforcement was also weak. Because the law encompassed obscenity broadly, abortion and contraception themselves were never the exclusive targets. “Comstock and his colleagues did a lot more with pornography and sex toys, for example,” Ziegler says. In addition, courts quickly established that, for example, abortion and contraception within the context of an established doctor-patient relationship was exempt from the law. “It wasn’t an abortion ban the way we would think of in the 20th century,” Ziegler says.
By the 1910s, the Comstock Act was hardly used to target abortion at all, she says. Then, in 1973, the Supreme Court’s decision in Roe v. Wade determined that the 14th Amendment protected an individual’s right to make decisions about their own pregnancy. Combined with the 1971 law that removed the Comstock Act’s language about contraception, Roe defanged the already-dormant monster—but the provision was never repealed.
Over the decades, its opponents either couldn’t or didn’t want to spend the political capital to try to remove the so-called zombie law, says Joanne Rosen, a public health attorney and a professor at the Johns Hopkins University Bloomberg School of Public Health.
A Backdoor National Abortion Ban
“This is sort of a backdoor way to have a national abortion ban without doing anything new other than winning the presidency.”
Now antiabortion activists argue that, without the protection of Roe v. Wade, the text of the Comstock Act ought to be taken literally and that, even today, mailing abortion medications is illegal, with no exceptions, including when a pregnant person’s life is in danger. “They are looking for any way to end as much abortion as possible,” says David Cohen, a law professor at Drexel University. “This is sort of a backdoor way to have a national abortion ban without doing anything new other than winning the presidency.”
That’s because, right now, the only thing blocking the law is the executive branch: the Food and Drug Administration has stood by its 2021 decision to make mifepristone available by mail, and the Department of Justice has concluded that because every state allows legitimate medical uses of the drugs, including for abortion, senders can’t know that abortion pills will be used illegally. But neither measure is binding: if Trump wins November’s presidential election, his Department of Justice could enforce a new, strict interpretation of the Comstock Act.
“The attraction of the Comstock Act to persons who are trying to ban abortion nationwide, not just state by state, is that it’s already law,” Rosen says. “You don’t have to draft and introduce and pass a brand-new law; you have to find a way to enforce a law that already exists.”
Anyone charged under the Comstock Act could sue, but that would still come with the threat of five years in prison if the case were to fail, Cohen says. Any challenge would most likely eventually end up in front of the Supreme Court, which, in this scenario, would unlikely be any less conservative than it is today, he adds.
The official Republican platform that Trump has endorsed does not mention the Comstock Act; it only alludes to the fetal personhood movement’s invocation of the 14th Amendment. But this omission is likely to be a political ploy, given the unpopularity of abortion restrictions, rather than a real reflection of Trump’s intentions, Cohen says. Meanwhile the law is referenced—not by name—in the Project 2025 blueprint for a conservative future. Trump has denounced Project 2025, but it was formulated by several key associates of him and his vice presidential candidate J. D. Vance. Trump has also claimed credit for being the one to “kill” Roe. In addition, while he said that he would not sign an abortion ban during the September 10 presidential debate, the Comstock approach wouldn’t require any such signature.
“It’s just hard to imagine a Republican president winning office and not going down this path, given what that party has been saying since Dobbs,” Cohen says. The Comstock approach has clear benefits: It would offer a simple path to a nationwide ban rather than navigating the process in every state. And it would require neither congressional action nor imperilment of any politicians who must face future campaigns. “In Donald Trump, you’d have a president who can’t run for reelection anymore,” Ziegler says.
Since the 2022 loss of Roe v. Wade, many states have enshrined reproductive rights within their borders. “A nationwide ban would override the will of the people in those states that have moved, post-Dobbs, to protect abortion,” Rosen says.
Wide-Ranging Health Consequences
And of course, there would be serious health consequences. Overall, abortion restrictions tend to simply push the procedure later in gestation, says Matthews, the gynecologist. Initial estimates suggest that in states that have banned abortion since Dobbs, the average abortion has moved one week later in pregnancy. While all types of abortion are safer than giving birth, abortions earlier in pregnancy are safest.
Experts see two possible interpretations of a revived Comstock Act. One would target only the pills used in medication abortions, pushing everyone seeking abortion care toward in-clinic abortions, which are more expensive and come with a slightly higher risk of major complications.
The most extreme interpretation could also attempt to target the instrumentation used in in-clinic abortions, which, unsurprisingly, is also used in routine medical care. That could either make the measure impossible to enforce or even more devastating to women’s health. “You are going to be affecting the entire field of ob-gyn, not just targeting what you’re calling ‘abortion procedures,’” Matthews says.
The harms of a nationwide ban will be distributed unequally, says Loretta Ross, an associate professor of women and gender studies at Smith College. Just as wealthier people in states with bans have been better positioned to travel for abortions, the same would be true in the case of a nationwide ban. “The people who will be left behind are going to be the most vulnerable without those resources,” she says.
But just as, despite the hurdles, abortion rates have risen since Dobbs, she doesn’t think any use of the Comstock Act would succeed at stopping abortions. “The toothpaste is out of the tube,” she says. “There is no way to make women forget 50 years of learning about our bodies and abortion.”