Repealing the Comstock Act — the Victorian-era anti-vice law that anti-abortion lobbyists aim to use to ban abortion nationwide, even in states where abortion rights are protected — has just turned from an urgent question to an absolute necessity. And it’s all thanks to the Supreme Court.
Oral arguments at the court Tuesday morning suggested the court was likely to side with the White House in its appeal of lower court rulings restricting access to the abortion medication mifepristone. But anti-abortion Justices Samuel Alito and Clarence Thomas made clear that they are deeply interested in Comstock’s anti-abortion applications. Both justices invoked the “zombie” law — which has not been meaningfully enforced in decades — by name and speculated on its application in blocking the distribution of mifepristone by mail.
Democrats cannot and should not wait for a pro-Comstock ruling from the justices to act.
The right’s Comstock plan is not theoretical. It’s an explicit component of Project 2025, the sweeping hyper-conservative, right-wing Christian playbook ready for a second Trump administration to take up on Day 1. In light of this, it’s time for Democrats to put “Restore Roe” on the back burner and instead make repealing Comstock their top priority in the fight to defend and preserve abortion access across the country. The strategy has all kinds of advantages. Top among them is rightfully positioning Democrats as the party of progress, solidifying their role not just as defenders of reproductive rights but also as boldly aggressive champions for bodily autonomy, LGBTQ rights and free speech in general, all of which are threatened by the imminent resurrection of Comstock.
Even before this week, Some Democrats had already floated the idea of going after Comstock. Most notably, Sen. Elizabeth Warren of Massachusetts told Jezebel this month that “if” the Supreme Court permits Comstock enforcement around mailing abortion medications in its FDA vs. Alliance for Hippocratic Medicine ruling, “then Congress has a responsibility to protect Americans’ reproductive health care and respond.”
But there’s no longer any “if” about it. This is not a matter for wait-and-see. Regardless of how the Supreme Court rules in FDA v. AHM, anti-abortion forces will not give up on their push to deploy Comstock to ban abortion. Democrats cannot and should not wait for a pro-Comstock ruling from the justices to act, and they should not demur if the court does not activate the Victorian law. They must get ahead of Comstock, now.
Repealing Comstock would be a boon for Democrats on a number of fronts. Policywise, it’s a concrete means of preserving access to medication abortion, the most common form of abortion in the U.S. post-Roe. A successful repeal would be more than “taking steps” to protect abortion access; it would mean actually protecting abortion access. Even a failed attempt to repeal the law would position Democrats — who have sometimes been too reluctant to get out front on abortion rights — as righteous advocates for reproductive freedom. Too often, Democrats have been roped into playing defense on abortion and gotten bogged down in disproving, again and again, anti-abortion propaganda and misinformation about, among other things, “abortion until birth.”
The story of prudish Republicans in thrall to a 150-year-old law — named for a dour old mutton-chopped man in a top hat — is a record worth putting on repeat.
Perhaps most important, a Comstock repeal campaign would serve Democrats up and down the ballot this November, giving the party a uniting — and popular — cause in a time when many voters are deeply dismayed by the Biden administration’s support for the war on Gaza and inaction on protections for immigrants at the border. Focusing on Comstock repeal would put its Republican supporters on the defensive. They would have to articulate why a law passed nearly 50 years before women even had the right to vote should be enforced today, let alone used to force women and pregnant people across the country to stay pregnant against their will.
The messaging opportunities themselves stand to do significant damage to a GOP that already clearly struggles to convince voters that it is something other than a haven for regressive bigotry. The story of terminally prudish Republicans in thrall to a 150-year-old law — named for a dour old mutton-chopped man in a top hat — is a record worth putting on repeat. Pushing the GOP to defend its enthusiasm for the Comstock Act is a tangible way to show that Republicans are not just invested in retro ideologies, but actively supporting moving the country back a century or more.
And Republicans are deeply serious about it; that much became clear when Justices Alito and Thomas brought up Comstock, unprovoked, on Tuesday. The narrow question before the court did not necessarily demand that the justices engage with the act, but they did it anyway. Thomas and Alito signaled to anti-abortion forces that there are sympathetic ears waiting to hear the right arguments for exhuming the corpse of this long-dead law. Six feet underground, it turns out, is not nearly a deep enough burial for the Comstock Act. Democrats cannot wait until its rotten, skeletal hand shoots up from the dirt to try to stamp it back down again.