Some members of Congress are finally taking action to repeal the Comstock Act — a step the Freedom From Religion Foundation wholeheartedly endorses.
In introducing legislation to repeal the Comstock Act yesterday, Sen. Tina Smith, D-Minn., aptly characterized the federal law as “a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history.” But, as she warned, “When MAGA Republicans say they intend to use the Comstock Act to control women’s decisions and enact a backdoor national abortion ban, we should believe them. 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.”
While it shouldn’t be necessary to repeal an antediluvian 1873 federal law inspired by a religious fanatic, latter-day Comstockians are clearly signaling they intend to demand its enforcement. Ominously, among those who have signaled that the arcane federal act is good law are two justices of the U.S. Supreme Court. Justice Samuel Alito said in March during oral arguments in the challenge of the abortion medication mifepristone: “It’s not some obscure subsection of a complicated obscure law.” Instead, Alito referred to the law as a “prominent provision,” and Justice Clarence Thomas repeatedly asked questions about it.
The infamous Comstock Act made it illegal to send “obscene, lewd or lascivious,” “immoral,” or “indecent” publications or contraceptive or abortifacient devices (dubbed “indecent articles”) through the mail. The federal act deputized Comstock to personally prosecute cases. He bragged that he was responsible for 4,000 arrests and 15 suicides. The act wasn’t overturned with regard to birth control devices until Margaret Sanger, herself a victim of the Comstock Act, took and won a challenge, United States v. One Package, in 1936.
The Comstock Act was further eviscerated in 1965, when the Supreme Court ruled that the right to privacy embodied in the Fourth Amendment gave married couples the right to practice contraception, a right extended in the Baird case of 1972 to unmarried individuals. The Supreme Court’s 1973 ruling in Roe v. Wade clearly invalidated Comstock’s references to abortifacients. But when the current Supreme Court reversed Roe in 2022, antii-abortion crusaders began insisting that the Comstock Act remained valid law and barred the mailing of medication abortion, even in states where it remains legal.
FFRF Action Fund praises Rep. Becca Balint for agreeing to introduce the House companion bill, with co-leads Reps. Cori Bush, Veronica Escobar, Mary Gay Scanlon and Bonnie Watson Coleman. The legislation is co-sponsored by Sens. Elizabeth Warren, D-Mass., Catherine Cortez-Masto, D-Nev., Sheldon Whitehouse, D-R.I., Debbie Stabenow, D-Mich., Jeanne Shaheen, D-N.H., Jeff Merkley, D-Ore., Amy Klobuchar, D-Minn., Tammy Duckworth, D-Ill., Mazie Hirono, D-Hawaii, John Fetterman, D-Penn., Cory Booker, D-N.J., Peter Welch, D-Vt., Alex Padilla, D-Calif., Richard Blumenthal, D-Conn., and Brian Schatz, D-Hawaii.
“In our current political climate, dominated by so many Christian nationalists, the Comstock Act is unfortunately a clear and present danger to the right to control one’s own body and reproductive destiny,” says FFRF Co-President Annie Laurie Gaylor, who began warning about the resurrection of the law more than two years ago.
The Freedom From Religion Foundation is a national nonprofit organization with over 40,000 members across the country. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.
