Abortion Rights Groups Ramp Up Pressure on Dem Leaders, Chuck Schumer to Repeal Comstock

Just weeks out from the election, Democratic presidential nominee Kamala Harris and the rest of the party are campaigning heavily on the existential threat posed by Donald Trump and Project 2025—the right’s agenda for a GOP administration to bypass Congress and impose a national abortion ban. Of course, running on that hypothetical threat isn’t the same as actively fighting it right now.

Reproductive rights and LGBTQ groups are revving up pressure on Democratic Congressional leaders to act now to stop the Comstock Act, a 19th-century zombie law that's central to key tenets of Project 2025—particularly its national abortion ban. On Tuesday, a coalition of groups including Healthcare Across Borders, Abortion Access Front, Access Reproductive Justice, Ultraviolet Action, and Health Not Prisons Collective sent a letter to Senate Majority Leader Chuck Schumer urging him to bring Stop Comstock Act for a floor vote “at the earliest possible date, killing this zombie law once and for all, or, at the very least, putting Republicans on the record about their support for a backdoor national abortion ban.”

Specifically, the Comstock Act of 1873 bans the dissemination of “obscene” materials—like, say, abortion pills or medical products used by abortion providers. In June, Democratic lawmakers led by Sen. Tina Smith (D-Minn.) and Rep. Cori Bush (D-MO) introduced the Stop Comstock Act to repeal aspects of the law that could be wielded to ban abortion. 

Tuesday's letter stresses that Republicans have “[made] it clear that they will misapply the Comstock Act of 1873 to ban abortion nationwide,” and cites how Project 2025 “explicitly directs the DOJ to enforce Comstock against ‘providers and distributors’ of medication abortion.” There’s extensive evidence Republicans broadly want to apply Comstock to impose a national abortion ban: In March, 145 Republican Congress members signed onto a brief asking the Supreme Court to cite the Comstock Act to rule in favor of unnecessary restrictions on medication abortion in a case this summer. Also in March, during oral arguments for that medication abortion-related case, Justices Samuel Alito and Clarence Thomas both suggested Comstock should be revived.

The advocates’ letter also cites Texas attorney and anti-abortion activist Jonathan Mitchell, the architect behind some of the most terrifyingly creative and effective anti-abortion legislation in the nation: “We don’t need a federal ban when we have Comstock on the books,” Mitchell said in February in an interview with the New York Times. 

“Republicans could misapply the law to go after everything from birth control to clean needle exchange and HIV prevention technologies and to gender-affirming care,” the letter further states. “[Dobbs v. Jackson Women’s Health] was only the beginning of the far right’s campaign to ban abortion. A national ban has always been their goal, and they clearly see Comstock as their fastest path to get there.” 

To the letter’s point, contrary to Trump’s lies that he’d leave abortion up to the states (the current awful state of affairs, FWIW), state-level Republican officials are already trying to enforce their abortion bans across state lines. Just last week, Texas sued the Biden administration to stop a rule that protects traveling abortion patients’ medical data from law enforcement, claiming the rule would hinder Texas’ ability to enforce its total ban. Alabama abortion rights groups are currently awaiting a ruling in their lawsuit against their attorney general for threatening to charge groups that legally help residents travel for abortion with a “criminal conspiracy.” On the federal level, in July, Senate Republicans voted against a bill to codify the constitutional right to interstate abortion travel, baselessly categorizing it as “abortion trafficking.” Abortion trafficking is not a thing, but that hasn’t stopped several states from passing laws to criminalize the act of helping minors travel for out-of-state abortion care.

"The stakes are too high to wait,” Alyssa Morrison, senior civil rights attorney at Lawyers for Good Government, said in a statement shared with Jezebel, calling on Schumer to bring forth the Stop Comstock Act immediately. “Every day we keep such an overreaching law as the Comstock Act on the books in its current form is another day our government forfeits its responsibility to protect basic rights.” Sarah Lipton-Lubet, president of Take Back the Court Action Fund, added that “by calling for a vote, Sen. Schumer can put these extremists on the record and show voters that Republicans will cut off abortion access for all of us as soon as they have the chance.”

It's not enough for Democrats to fundraise and campaign on the existential threat a second Trump presidency poses to abortion rights—it's incumbent on them to act before November.