Trump’s Allies Say They’ll Enforce the Comstock Act. Believe Them.
Until the Supreme Court overturned Roe v. Wade in 2022, it was hard for feminists to get Americans to take the threat of losing the constitutional right to abortion seriously. Describing Hillary Clinton’s inability, in 2016, to shake pro-choice voters out of their complacency, The New York Times’s Lisa Lerer and Elizabeth Dias wrote, “Internal campaign polling and focus groups showed that the issue did not resonate strongly with key groups of voters, because they did not believe Roe was truly at risk.”
It is similarly difficult to get Americans to appreciate the threat that the 19th-century Comstock Act could be resurrected. Named colloquially for the fanatical postal inspector Anthony Comstock, the 1873 act — which is actually a set of anti-vice laws — bans the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material, including devices and substances used “for producing abortion, or for any indecent or immoral purpose.” Though never repealed, it was, until recently, considered a dead letter, made moot by Supreme Court decisions on free speech, birth control and abortion.
But with Roe overturned, some in Donald Trump’s orbit see a chance to reanimate Comstock, using it to ban medication abortion — and maybe surgical abortion as well — without passing new federal legislation.
The 920-page blueprint for a second Trump administration created by Project 2025, a coalition of conservative organizations, calls for enforcing Comstock’s criminal prohibitions against using the mail — widely understood to include common carriers like UPS and FedEx — to provide or distribute abortion pills. Some MAGA legal minds believe that Comstock could also be wielded to prevent the mail from transporting tools used in surgical abortions. “We don’t need a federal ban when we have Comstock on the books,” Jonathan F. Mitchell, a crusading anti-abortion lawyer who represented Trump before the Supreme Court this year, told Lerer and Dias in February.
Conservatives know this would be enormously unpopular, which is probably why, when they talk about Comstock at all, they often refer to it by its criminal code numbers rather than its common name. (“I think the pro-life groups should keep their mouths shut as much as possible until the election,” said Mitchell.) Democrats, by contrast, need to be doing everything possible to make “Comstock” a household word. That’s why they should champion a bill introduced by Senator Tina Smith of Minnesota on Thursday to overhaul the Comstock Act. And it’s why President Biden would be wise to act on a petition from the Foundation for Individual Rights and Expression to posthumously pardon one of Comstock’s high-profile victims.
Many were shocked when the Supreme Court overturned Roe two years ago, but as Smith, the former vice president of Planned Parenthood of Minnesota, told me, they shouldn’t have been, because the right made no secret of its objectives. There something similar going on with Comstock. “Believe them when they tell us what they want to do, because they will do it if they’re given half a chance,” she said.
