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Comstock Act may be in Dems' crosshairs

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Mar 27, 2024
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Illustration: Sarah Grillo/Axios

Some congressional Democrats appear ready to overhaul or even repeal a 19th century anti-obscenity law that's been the focus of anti-abortion forces.

Why it matters: Justices Samuel Alito and Clarence Thomas brought up the Comstock Act during Tuesday's oral arguments on mifepristone, noting the way it banned the mailing of objectionable materials could be interpreted as applying to medication abortion.

  • The act wasn't considered enforceable when Roe v. Wade was the law of the land.

Driving the news: Rep. Cori Bush posted on X yesterday that she wants to repeal the Comstock Act.

  • "Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate," Bush wrote.
  • Sen. Tina Smith is also considering legislation that would overhaul the statute, her office confirmed to Axios.
  • Smith told NOTUS last week that, "the bottom line is that we can see that extremist Republicans are using the Comstock Act as their legal justification for rolling back people's reproductive freedoms, and I think we have to be ready to fight back on that."

Yes, but: Reproductive rights groups have cautioned congressional offices that pushing a legislative response before the court decides the mifepristone case could give justices a reason to reference Comstock and the question of if the FDA violated the act when it allowed abortion pills to be available by mail.

  • It's also extremely unlikely that any repeal or overhaul would get far in this narrowly divided Congress.

The big picture: Justices during oral arguments appeared unlikely to further restrict FDA's authority over how mifepristone is distributed.

  • A decision is expected in June.
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