Opinion: How Democrats could use the lame duck to save medication abortions

Before Democrats lose the White House and the Senate, they should push through legislation to repeal the Comstock Act, which could be used to prevent legal medically induced abortions everywhere in the United States. Given the success of ballot initiatives that protect the right to abortion in even conservative states in last week’s election, the politics could be right to repeal that 1873 law.

The Comstock Act was adopted to prohibit the interstate shipment of obscene materials. The law also outlawed the shipment of anything meant to prevent conception or end pregnancy.

The law, as it now stands, prohibits the shipment through the mail of “every article or thing designed, adapted, or intended for producing abortion.” It also forbids any “express company or other common carrier” from providing for “carriage” of such items “in interstate or foreign commerce.” The act provides for a sentence of up to five years for the first offense and 10 years plus a fine for the second.

In 2023, 63% of all abortions in states without total bans were medically induced rather than surgical. Conservatives want the federal government to invoke the Comstock Act to prohibit any shipment of mifepristone and misoprostol, the drugs used for medically induced abortions, by mail or other service, in effect ending them in the United States. This would apply even in states with strong abortion protections, such as California.

The Heritage Foundation’s Project 2025, a road map for Donald Trump’s second term as president, explicitly states that “following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.” In June, the right-wing National Review wrote “a new administration is free to enforce the Comstock Act.”

Enforcing it does not require passing any new laws. Late in the campaign, Trump said he’s not for new legislation requiring a nationwide abortion ban. But Jonathan Mitchell, who represented Trump in the Supreme Court, stated: “We don’t need a federal ban when we have Comstock on the books.” Just a handful of criminal prosecutions threatening doctors with five-year prison sentences for mailing abortion medicines could intimidate most doctors and other providers from doing so.

Even though the Biden administration refused to enforce the Comstock Act, over the last year, a number of commentators have called for it to be repealed. In June, Sen. Tina Smith (D-Minn.) introduced the Stop Comstock Act with co-sponsorship from numerous Democratic Senate and House members. The bill was endorsed by the Congressional Progressive Caucus.

Smith stated at the time: “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.”

Congress did not take up the bill. It is imperative that lawmakers do so in the upcoming lame-duck session.

Would they succeed? Before the new Congress is sworn in on Jan. 3, 2025, Democrats in effect hold a 51-49 Senate majority and a four-seat House minority; they wouldn’t need to persuade many Republicans in order to achieve this repeal. Until Jan. 20, Biden is the president who would sign the Stop Comstock Act.

Abortion is the one issue that Democrats won in this election. Voters in seven states — including conservative ones such as Missouri and Montana — passed laws protecting abortion rights. Even in Florida, which Trump won decisively, 57% of the voters supported an initiative safeguarding abortion rights, though this was less than the 60% needed in that state for it to pass.

Polls show that almost two-thirds of voters support broad abortion rights. In the House, a few Republicans might fall in line with voters’ wishes and back repeal. In the worst case, even if the effort to repeal the Comstock Act failed, it would be politically beneficial for Democrats to have Republicans on record voting to keep this archaic law.

In the weeks ahead, Democrats need to think about what they can do before they lose the White House and the Senate. Repealing the Comstock Act should be a top priority.

Erwin Chemerinsky, a contributing writer to Opinion and dean of the UC Berkeley School of Law, is the author of “No Democracy Lasts Forever: How the Constitution Threatens the United States.” Miles Mogulescu is an attorney and Oscar-nominated filmmaker.